Most would agree that the American Bar Association (ABA) wields significant influence in the legal profession.
Yet the full extent of their policy impact remains unclear to many outside the field. This article pulls back the curtain to reveal some of their most substantial effects to date.
We'll explore key policies directly governing lawyers and law schools, model laws indirectly shaping state legislation, advocacy efforts around reforms, and address criticism regarding their authority and representation.
Overview of the Influence of the American Bar Association
The American Bar Association (ABA) is a voluntary bar association with over 400,000 members. As the largest association of legal professionals in the United States, the ABA has significantly influenced policymaking in key areas impacting the legal profession and access to justice. This section provides background on the ABA and summarizes its role in shaping policies historically and currently.
Brief History and Mission of the ABA
The ABA was founded in 1878 with the key goals of establishing standards for legal education and professional conduct, improving the administration of justice, and promoting pro bono legal services. Over time, ABA membership grew to include attorneys, judges, law professors, and law students. The ABA's mission evolved to advance the rule of law, ensure meaningful access for all to the justice system, and serve ABA members through practical resources and benefits.
ABA's Policymaking Body and Process
The ABA House of Delegates serves as the association's main policymaking body. It consists of ~560 delegates representing states and territories, state and local bar associations, affiliated organizations, ABA sections and divisions, and the ABA Board of Governors. Proposed policies typically originate from one of the ABA's sections or committees before going to the House for debate, revision, and approval. If approved, policies become official ABA policy.
Most Influential ABA Policy Areas
Key areas where ABA policies have shaped laws and regulations include legal ethics, professional regulation, access to justice, standards for judges and courts, and issues impacting the legal profession such as law school accreditation. ABA policies are often cited in court decisions and help form model rules.
Key Ways ABA Policies Directly Impact the Legal Profession
The American Bar Association (ABA) plays a major role in shaping policies and standards for the legal profession in the United States. From lawyers' education and licensing to conduct rules and technology regulations, ABA policies have widespread impacts.
Mandating Technology Safeguards for Client Data
The ABA has enacted cybersecurity and data privacy policies to govern how lawyers store and transfer sensitive client information. These include:
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Requiring lawyers to make reasonable efforts to prevent inadvertent data leaks and unauthorized access. This means implementing safeguards like encryption, firewalls, and access controls.
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Mandating prompt notification to clients if their confidential data is breached. Lawyers must disclose data breaches to clients so they can take protective actions.
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Providing guidance on cloud computing, outlining reasonable care lawyers must take when storing or transmitting client data using web-based services.
By establishing baseline cybersecurity and privacy expectations, the ABA aims to build public trust and help the legal profession adapt to emerging technologies.
Model Rules of Professional Conduct
Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct provide an ethical code and duties for lawyers. Although model rules, they have been adopted fully or in part by 49 states. They cover:
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Client-lawyer relationships, confidentiality, and conflicts of interest.
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Rules around honesty, integrity and fairness to clients and the legal system.
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Guidelines on solicitation, advertising and fee agreements.
By outlining standards of professional conduct, the model rules allow state bars to discipline lawyers who violate ethical codes.
Accreditation of U.S. Law Schools
The ABA Section of Legal Education and Admissions to the Bar grants accreditation to U.S. law schools. It sets standards for:
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Curriculum to prepare students for effective, ethical and responsible legal practice.
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Bar exam pass rates and job placement outcomes to evaluate program efficacy.
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Resources like faculty, facilities, libraries and technology to support student learning.
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Public disclosures of tuition, scholarships and consumer information for applicant awareness.
Through its law school approval process, the ABA promotes quality legal education to shape the next generation of licensed lawyers.
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Indirect Impacts: ABA Advocacy and Model Laws
This section explores ways ABA policy shapes legislation on access to justice, sentencing laws, judicial conduct, civil rights and more.
Model Laws Often Adopted by States
The ABA creates model laws and policies on various legal issues that are often adopted by state legislatures. Some examples include:
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Model rules on lawyer trust account overdraft protection to prevent misuse of client funds. Over 30 states have enacted versions of these rules.
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Model rules on attorney-client privilege aim to clarify this area of law. Many states look to the ABA models when updating their own evidence codes.
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Model rules of professional conduct form the basis of rules governing lawyers in most states. Issues like advertising, conflicts of interest and candor before tribunals are covered.
Amicus Briefs Advocating Reforms
The ABA frequently files amicus ("friend of the court") briefs to try to advance policy goals through court cases. Some key areas include:
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Immigration - arguing against deportation without due process, ending family separation, etc.
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Sentencing - pushing for sentencing reforms and alternatives to incarceration.
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Right to counsel - working to expand public defense services for indigent defendants.
Congressional Testimony
The ABA provides expert testimony to Congress to shape legislative reforms in areas like:
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Legal services funding - advocating for resources for civil legal aid.
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Judgeships - analyzing needs for new federal judgeships.
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Court funding - supporting adequate funding of federal courts.
In these ways, the ABA leverages its expertise to indirectly influence policy at all levels of government. The model laws, amicus briefs and Congressional testimony aim to improve access, fairness and efficiency of the legal system.
Criticisms and Challenges to the ABA's Authority
The American Bar Association (ABA) plays an influential role in regulating legal education and the legal profession in the United States. However, the ABA has faced criticism and legal challenges regarding concerns over its authority and representation.
Arguments of Being a Monopoly Power
Critics argue that the ABA has too much control and acts as a monopoly power given that membership in a state bar association is mandatory for the practice of law. Some key issues raised include:
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State bar associations require membership in the ABA for accreditation, limiting options for alternative legal education programs.
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The ABA sets professional conduct rules and educational requirements that critics contend stifle innovation in the legal industry.
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There are conflicts of interest in the ABA controlling both legal education and the profession.
Lawsuits Allege Restraint of Trade
The ABA has faced several anti-trust lawsuits alleging it restrains trade and competition. Key allegations include:
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ABA accreditation standards limit the number of law schools, keeping tuition rates high.
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Accreditation policies hinder the development of alternative, lower-cost legal education models, such as online programs.
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Critics argue the system lacks accountability as the ABA is essentially self-regulated.
Several lawsuits have accused the ABA of violating anti-trust laws. While none have fully succeeded so far, they highlight ongoing concerns.
Bias and Representation Concerns
Additional criticism contends that the ABA does not adequately represent the full diversity of the legal profession. For example:
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Some claim minority groups such as lawyers of color and women are underrepresented in ABA leadership.
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Policies may insufficiently address inequities and barriers facing attorneys from marginalized communities.
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The ABA's role in access to legal services for lower-income groups has also faced scrutiny.
Overall, while the ABA maintains an influential position, it continues to meet resistance and legal challenge regarding the scope of its authority. Concerns persist over representation, barriers to innovation, and anti-competitive effects of self-regulation.
Conclusion and Future Outlook
Summary of Most Substantial Impacts
The ABA has had a significant influence on shaping policies and regulations in the legal system over the past century. Key impacts include:
- Establishing model rules of professional conduct for lawyers that most states have adopted
- Influencing law school accreditation standards and requirements
- Advocating for legal aid funding and access to justice initiatives
- Submitting amicus briefs to appellate courts on major public policy issues
However, the ABA has also faced criticism for being slow to advance diversity in the legal profession and falling short on ensuring affordable legal services.
Projecting Future Challenges and Opportunities
The ABA's authority faces threats from recent lawsuits and declining membership rates. Key issues shaping the ABA's future policymaking role include:
- Antitrust lawsuits questioning if ABA policies like law school accreditation violate competition laws
- Declining lawyer membership and questions if ABA still represents views of most attorneys
- Potential reforms to diversify ABA leadership and be more responsive to public policy concerns
If the ABA can adapt to better reflect the changing legal landscape, it may retain an influential voice. But the organization risks becoming less relevant if it cannot address representation and transparency concerns. The coming years will indicate whether the ABA can evolve along with the legal system it has long aimed to shape.
