ABA adopts guidance for litigation financing
The American Bar Association voted to adopt “Best Practices for Third-Party Litigation Funding” on 3 August. The move establishes&nbsp;a slew of national guidelines that law firms, consumers and legal funding companies should follow.
The American Bar Association House of Delegates convened Aug. 3 for a two-day meeting, tackling the first batch of more than 50 resolutions on its agenda, adopting new policy on ensuring those in incarceration have voting privileges, establishing best practices for third-party litigation funding and urging governments to improve their reports on police misconduct.

On tap for day two are policy proposals that urge state lawyer-licensing authorities to make public health issues paramount for upcoming bar exams and provide options for recent graduates who cannot take the bar; a measure to establish June 19 or Juneteenth as a national holiday to commemorate the end of slavery; and a resolution that is intended to curtail the defense of qualified immunity in civil suits brought against law enforcement officers.

The HOD, as the ABA policy-making body is known, is meeting virtually because of the COVID-19 pandemic. It includes 597 delegates from state, local and specialty bar associations, and its sessions conclude the virtual 2020 ABA Annual Meeting, which began July 29.





With attention focused on police misconduct in the wake of the May 25 homicide of George Floyd and other police incidents, the HOD adopted Resolution 116A, which asks governments to enact laws that require law enforcement agencies to keep records of instances of deadly force as well as allegations of non-lethal excessive force. It also urges that a fully independent prosecutor be appointed when an individual dies in the custody of or during an encounter with a law enforcement officer.

Through Resolution 111A, the House established the ABA Best Practices for Third-Party Litigation Funding as policy. It is intended to serve as a guide for lawyers new to the practice of third-party litigation as well as more experienced attorneys and recommends that lawyers, who engage in third-party financing, detail the arrangement in writing, include the non-recourse or restricted nature of the financing, ensure that the client retains control of the case and protect the attorney-client relationship. It does not take a position on the use of the practice, which has ballooned into a major industry in the past few years.

The delegates also adopted two new policies that urge appropriate governmental entities to allow those incarcerated to vote. Resolution 116E recommends governments provide a process to allow eligible pre-trial detainees to obtain a ballot and be able to vote despite their detention. And Resolution 116H advocates for the repeal of laws that disenfranchise persons based upon criminal conviction and that voting rights be restored, without any requirements to fulfill financial obligations, for those currently and formerly incarcerated.

In other business, the HOD adopted:

Resolution 109B, which gives the Council of the Section of Legal Education and Admissions to the Bar greater latitude to act quickly to address an emergency, such as the COVID-19 pandemic, to provide temporary relief from a rule or the requirements of a standard. The council acts as an independent arm of the ABA for the accreditation of law schools nationally, and the change would allow it to respond more quickly to emergency requests from law schools, such as seeking approval to offer more online classes.





Resolution 100B, which urges governmental bodies to enact legislation banning race discrimination on the basis of the texture, style or appearance of a person’s hair and encourages implicit bias training to eradicate discrimination based on these factors.





A narrow exception to ABA Model Rule 1.8(e), which bars financial support for clients. Under Resolution 107, a lawyer representing an indigent client, either on a contingency fee or through a clinic on a pro bono basis, would be allowed to provide modest gifts, including for food, rent, transportation, medicine and other basic living expenses.





Resolution 114, which urge that all national governments observe, respect and protect the independence of the International Criminal Court, a global judicial body. The new policy also condemned threats by governments to the ICC and its officers and personnel in the performance of their duties.



The status of all HOD resolutions can be found here.