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Bar Associations

Bar associations could be targeted, Trump DEI order says, spurring response from 2 of them

By Debra Cassens Weiss

January 23, 2025, 10:55 am CST

Bar associations could be targeted for investigation under President Donald Trump’s executive order seeking to end “illegal preferences and discrimination” in government and the private sector.

The order issued Tuesday called for federal agencies to identify up to nine entities for possible civil compliance investigations, including large nonprofits and state and local bar associations.

The order declared that “influential institutions of American society” are using “dangerous, demeaning and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA) that can violate the civil rights laws of this nation.”

Reuters has the story on the response from two state bar associations.

The State Bar of California said its programs won’t be affected because “none of our work in this space involves illegal discrimination or preferences.”

Victoria Santoro, president of the Massachusetts Bar Association, also said the state bar is not breaking the law.

“I think there are better ways our federal government could use its time than looking at bar associations,” Santoro added.

The American Bar Association is not commenting at this time, a spokesperson told the ABA Journal.

The ABA’s Goal III calls for eliminating bias and enhancing diversity by promoting full and equal participation in the association, the legal profession and the justice system. Over the last few years, these ABA diversity programs and policies have come under scrutiny:

  • The ABA section that is recognized as the accrediting group for JD programs has been wrangling with changes to its diversity standard for law schools. As currently written, Standard 206 says law schools “shall demonstrate by concrete action” a commitment to having a student body, faculty and staff who are “diverse with respect to gender, race and ethnicity.” The section decided to revise the standard following a June 2023 U.S. Supreme Court decision striking down race-conscious admissions programs at universities.

The latest proposed revision under consideration by the ABA Section of Legal Education and Admissions to the Bar requires a commitment to diversity for all people, including listed members of historically disadvantaged groups.

The wording change didn’t satisfy 21 attorneys general in Republican-controlled states, who warned that it “appears to perpetuate unlawful racial discrimination.”

  • At least nine ABA diversity programs were targeted by the conservative Wisconsin Institute for Law & Liberty in a civil rights complaint filed with the U.S. Department of Justice in May 2024. The ABA’s general counsel, Annaliese Fleming, said at the time the ABA programs are lawful. and the allegations are “factually and legally incorrect.”

In October 2024, the ABA updated its description of one targeted program—its judicial clerkship program—because some language “did not accurately reflect the operation of the program,” Fleming said in a statement explaining the change. The program introduces law students from diverse backgrounds to judges and law clerks.

  • The ABA changed its diversity policy for continuing legal education programs that it sponsors after the Florida Supreme Court banned course credit in the state for programs with panel “quotas.” The old ABA policy had numerical requirements for diverse panelists; the new policy says CLE organizers “will invite and include” moderators and faculty members to create panels to meet Goal III objectives.

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Ethics

Overturning 45-year precedent, New Jersey gives disbarred lawyers second chance

By Debra Cassens Weiss

October 16, 2024, 11:55 am CDT

Former New Jersey lawyers who are disbarred will in most cases be allowed to apply for reinstatement after five years, the New Jersey Supreme Court has decided.

The New Jersey Supreme Court’s Oct. 15 order and determination reject the approach that it adopted in a 1979 case that imposed automatic and permanent disbarment for knowing misappropriation of funds. Now, lawyers disbarred for misappropriation, as well as lawyers disbarred for other reasons, can apply for readmission in five years as long as several conditions are met.

Law360 and Law.com are among the publications with coverage.

New Jersey now joins 41 other states and the District of Columbia in allowing disbarred attorneys to seek readmission. Most of those jurisdictions allow an application for reinstatement after five years.

But not every lawyer can apply for reinstatement in New Jersey. The state supreme court retained the authority to impose permanent disbarment in future egregious cases and to block successive applications for reinstatement for particular attorneys, according to an Oct. 15 press release on the new admission process.

The path back to a law license won’t be easy. Lawyers seeking readmission must meet several conditions, including requirements that they prove fitness to practice law, that they take and pass the New Jersey bar exam and the Multistate Professional Responsibility Examination, that they complete specified continuing legal education courses, and that they file a statement of restitution paid to former clients and a client protection fund.

The New Jersey Supreme Court acted on a recommendation of the so-called Wade Committee, also known as the state supreme court’s Special Committee on the Duration of Disbarment for Knowing Misappropriation. It is named for lawyer Dionne Larrel Wade, who was disbarred after a random audit showed that she sometimes took money from her client trust account to pay bills. She always repaid the money, however, and she had no prior discipline.

Wade had represented underserved clients and was honored for her pro bono work.

“Everything I’ve done in my life was to become an attorney and to help people,” Wade told the ABA Journal in a December 2022 article.

The New Jersey Supreme Court’s opinion disbarring Wade convened the special committee to evaluate whether disbarment should always be permanent. Twenty-one of the committee’s 28 members recommended a path to readmission.

New Jersey Supreme Court Chief Justice Stuart Rabner commented on the readmission decision in the press release.

“Going forward, New Jersey’s legal system will have a robust and fair review process that not only protects the public but also affords disbarred attorneys, who have taken appropriate steps, a chance to practice law again after five years,” Rabner said.

As a law professor, one of the most rewarding parts of my job is helping students navigate their burgeoning legal careers and find positions that bring professional satisfaction and success. I am always delighted when students appear in my office with an offer in hand or a story about an amazing case that they worked on over the summer.

Correspondingly, one of the worst parts of my job is witnessing the disappointment, embarrassment and uncertainty that students face when a hoped-for offer doesn’t arrive, a job doesn’t work out, or something goes wrong at an internship or summer placement.

While my students have found professional success in a wide variety of settings—large law firms, small firms, nonprofits, government agencies, courts, etc.—I have been highly troubled by the number of students who have been subjected to hiring and employment practices at small firms that I would describe as unethical at best and deceptive and exploitative at worst.

Here are just a few examples from my 11 years as a professor at law schools in three states (with superficial details changed to protect the privacy of the students involved).

  • A student who, after working for two summers at a small firm, was offered a “three-phase employment plan,” in which the firm offered to (1) pay her a (very) low salary for her first three months, (2) the same salary for the next three months on the condition that she generate an equivalent amount of revenue or pay back the difference, and then (3) stop paying her a salary from the sixth month onward but charge her a fee to use the firm’s printer. The hiring partner told her that she should plan to have developed her own book of business by that point.

  • A small firm that hired multiple summer associates with the promise that everyone would receive offers of permanent employment at the end of the summer. After putting in long hours for the next three months, every summer associate except the hiring partner’s son and a prominent potential client’s daughter were told that they would not be receiving the offers of which they had been assured.

  • A student who received an offer from a small firm that wanted him to open a branch office in another town completely on his own. The firm offered to pay him $40,000per year and give him a stack of law books that it had purchased from a recent library closure but noted that he would have to pay for his own insurance and his own subscription to online legal research service Westlaw. When the student pushed back, the firm agreed to raise the offer to $60,000 per year and promised that, eventually, he would earn back some amount of the additional revenue that he generated at a percentage to be negotiated later.

In addition to other such troubling examples, I have frequently witnessed 2Ls and 3Ls performing significant amounts of unpaid or low-paid work at small firms during the semester. These students sometimes struggle to keep up with their classes and the demands of their supervising attorneys.

Many of those students, moreover, never receive offers from those firms and are left scrambling to find other permanent employment near graduation. Meanwhile, my sense is that these firms see no problem with such outcomes and instead commend themselves for having given students an opportunity to gain experience.

In some of these situations, the attorneys involved may have been overwhelmed by hefty workloads or truly miscalculated the hiring and supervisory capacities of their small firms. They may also have been out of touch with the current legal market and reasonable compensation ranges.

In others, I think that such firms have purposely exploited law students, extracting considerable amounts of work from them while dangling the prospect of long-term employment that they know they will never be able to offer. Finding a law student to intern is indeed a cheaper option than hiring another attorney, paralegal or assistant.

I am sympathetic to the unique workload and economic challenges faced by small firms. I am also aware that such firms can—and very often do—offer law students opportunities that larger firms cannot: opportunities to perform more significant legal work earlier in their careers.

I have had scores of law students find immensely satisfying employment at small firms and even start their own. Additionally, local small firm attorneys are often some of the most supportive and engaged alums that law schools have.

But I also think that the lack of transparency surrounding small firm hiring increases the risk of unsavory employment practices—a risk that law schools, the bar and small firms themselves should work to reduce.

Unlike large firms, which typically compensate associates in a given region similarly and whose hiring and compensation practices frequently find exposure on sites like Above the Law, small firms vary enormously and are often black boxes with respect to compensation. Law students understandably struggle to determine whether an offer from a small firm is a fair one and often don’t yet have the experience to know when a term of employment is unusual or objectionable.

The common issues with large firms are well known and widely discussed: grueling hours, difficult partners and high attrition, particularly among women and people of color. I worry, however, that in our profession’s very laudable efforts to improve the workplace at big firms, small firms have largely escaped scrutiny.

Worse, the attention on big firms seems to have created a mythology in the minds of many law students that working for large firms necessarily entails high compensation in exchange for terrible hours and poor treatment, whereas small firms are their gentler, more family-friendly—though lower-paying—alternatives. Experienced members of our profession know that to be a false dichotomy, but law students may not.

To combat these issues, law schools have to offer students closer guidance in contemplating job offers from small firms. They should keep track of which firms engage in dubious employment practices and caution students away from them. Law schools also have to teach law students how to do due diligence before accepting a job. Schools should encourage students to research how other small firms in the area are compensating attorneys doing similar work, check the disciplinary history of the lawyers at the firm, and ask tactful but thoughtful questions about the firm’s finances.

State bars should take a more active role in monitoring the employment practices of small firms and whether such firms are providing adequate supervision of law student interns. State bars should also provide more CLE opportunities designed to ensure that small firm attorneys are up to date on employment laws, ethical hiring standards and current norms in compensation.

Finally, small firms have to engage in careful self-reflection before hiring law students. They should not hire law students whom they cannot adequately supervise or fairly compensate. Additionally, they should be as transparent and upfront as possible with students about the possibility of future employment.

While having law student interns is undoubtedly helpful, particularly if a firm is struggling under the weight of a daunting caseload or financial uncertainty, the risks inherent in small firm practice should not be borne by some of the most vulnerable members of our profession.

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Tracy Hresko Pearl is professor at the University of Oklahoma College of Law. She researches and writes in the areas of law and technology, criminal procedure and torts. Before becoming an academic, she was an associate at Hogan Lovells in Washington, D.C., and a law clerk for judges in the U.S. District Court for the Eastern District of Virginia and the 10th U.S. Circuit Court of Appeals at Denver.

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

My hometown Toulon, Illinois, is a small farm community of 1,200 souls about three hours southwest of the Chicago sprawl. During my youth, it featured five gas stations; four churches; three grocery stores and two doctors, which said something about gas, God and medicine in my 1960s rural America.

We also had one community library, and that made a great difference. There were two lawyers in town too and one courthouse on Main Street guarded by a genuine Civil War cannon in addition to our Toulon Public Library. The cannon is fired one time each year to start the Old Settlers Day parade, and in 2019, it even blasted the ashes of a beloved neighbor, Shirley, down Main Street and into eternity, just as she had wished.

I admired the lawyers and was determined to be one someday, but it was our library that first altered my life. I was born with an oft-misunderstood blood-clotting disorder called hemophilia. Its propensity to cause internal bleeding is life threatening, and it commonly damages joints, especially when not treated. There was no treatment in those old days, and there still is no cure. But long ago, my dad found something remarkable at our public library: hope.

Ours was an original Carnegie library, a local treasure built by the prescient steel magnate in 1914. My father discovered it in 1960 when I was 8 years old, and he was a factory worker at our local Kraft cheese plant.

He had missed out on college but loved reading. He found solace at that library, devouring books that featured Tom Sawyer, Scarlett O’Hara, history and world geography. He took many distant journeys through the writings of Emerson, Kipling, Churchill and Barbara Tuchman—one of his favorites. He was especially impressed by Tuchman’s take on the “shot heard round the world” beginning to Emerson’s Concord Hymn, which she called the best four lines in American literature. I memorized them years ago, just because.

Our Carnegie was a dignified brick edifice built for $6,000. It was an oasis for knowledge, not some bogus den of “literary filth” that today’s short-sighted cynics might pretend. I grew up two blocks north of that library in a two-bedroom house with one magical front porch swing. My dad often occupied that swing—always with a book.

The basic library was one giant room introduced by the massive desk of our town librarian and holistic health nut, Ella. It had a nostalgic aroma of wood and books, and every sound of footsteps or scooting chairs echoed off its high ceilings. Somehow the whole place managed to be quiet and loud at the same time.

Decades later I too found comfort not only in reading books but in writing them—largely inspired by my father and our library maven Ella. After many failed attempts, my first book was eventually published in 1997. It was researched almost entirely at the public library in Highland Park, Illinois, a congenial Chicago suburb that recently suffered through a widely reported 2022 Independence Day mass shooting.

There were virtually no public libraries in America before steel tycoon Andrew Carnegie built 1,689 of them from 1889 to 1923, many in rural communities. Carnegie, the wealthy industrialist immigrant known for U.S. Steel, Carnegie Mellon University and Carnegie Hall, had envisioned public libraries as an accessible portal to knowledge and distant places long before the internet.

Americans visit libraries more than we attend the movies, yet libraries have become recent targets for culture war politics. Nonetheless, most of us go because modern libraries are dynamic centers for learning, discourse and access to research and the internet. My own Carnegie library, planted in a vast sea of Midwestern corn surrounding the plaintive Spoon River, probably saved my life.

As a little boy with what doctors call hemophilia B, I had many bouts with unchecked swellings in my knees and other joints that kept me awake for days, suffering and often screaming into my pillow each night.

When my health deteriorated, my father consulted Ella, our local librarian and health nut, then he consumed every library book on health and nutrition that he could find. He decided to experiment on me with fresh vegetables, food supplements and vitamins. It did not cure me, but my healthier body began to recover a little faster and better. That likely saved me until new clotting factor treatments changed my life in 1972 when I was 20 years old.

Through a patchwork of loans, scholarships and luck, I made it through college at the University of Illinois in Urbana-Champaign. A mishap there once landed me in the local hospital, where I discovered a real hematologist for the first time.

Armed with medical science and renewed hope, I tackled law school at the Illinois Institute of Technology’s Chicago-Kent College of Law, where I encountered still more libraries. One of them was called “the morgue.” It was located at my weekend part-time job: the Chicago Tribune newsroom. I was hired to run copy among the reporters and editors, a dream position. The quiet morgue was where the Trib stored thousands of clipped articles organized by topic and folded into wooden card catalog-style drawers.

After an economic downturn in the 1970s, much rural manufacturing left downstate Illinois. In 1985, my parents made the quantum leap from country living to Chicago, where I had settled in as a young lawyer.

My dad found work in the internal library of a large law firm (Schiff Hardin) with hundreds of lawyers in the monstrous Sears Tower, where he flourished and was revered by his boss and co-workers. At age 53, my mother courageously became a bank teller across the street, her first outside job. They took the bus to work together, being sure to arrive on “Toulon time,” which meant an hour early, just in case.

I married a suburban Chicago girl, who later worked as a librarian and teacher at our local middle school. She also ran the summer school program and joined our community library board—twice—all in the suburban town where our two children would grow up.

She stresses that modern libraries are not just about books. They are information centers and offer access to the internet for those who need it. After all, public libraries are one of the few places where users don’t have to pay anything or buy something.

Libraries are “uber-local,” a pulse of the community. They are a curator of resources, not some evil distributor of propaganda. Their books are carefully chosen for their worth, content, diverse viewpoints and community interests, not to indoctrinate or manipulate. Those books should be celebrated, debated or criticized but not banned.

My transplanted mom and dad eventually retired, and they died several years later. Toulon’s old Carnegie building still stands. But now, it houses part of the Stark County Historical Society.

The actual library moved to a newly built modern facility near the town’s health center. It offers books, computers, access to the internet and portals to far-away places. Its inviting fireplace and reading lounge are named for my parents: John and Dolores Ham. They are buried not far away.

I have now practiced law in Chicago for nearly 50 years. Once, when I stood at the Piraeus, the historic port of nearby Athens described by Plato and Socrates, I realized that my father, of all people, had already been there. Of course, he had. Thanks to the endless journeys that he had taken from Toulon’s Carnegie library.

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Eldon L. Ham is a member of the faculty at the Illinois Institute of Technology’s Chicago-Kent College of Law, where he has taught since 1994. He is also the designated legal analyst for sports radio station WSCR in Chicago and is the author of five books on topics of sports history. For more information, visit his website at EldonHam.com.

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.