Welcoming The ABA’s New President

Monday, September 2, 2013 - 21:54

The Editor interviews James R. Silkenat, President, American Bar Association.

Editor: Jim, please describe your practice and your long-time involvement with the ABA.

Silkenat: I am a partner in the New York office of the national law firm Sullivan & Worcester, where I concentrate on project and infrastructure finance, banking, securities law, mergers and acquisitions and corporate law. Previously, I was Legal Counsel at the International Finance Corporation of the World Bank Group in Washington, DC.

My involvement with the ABA began in the mid-1970s. Back then, I was Chair of the Council of New York Law Associates, now the Lawyers Alliance for New York, and the ABA was sending its first Delegation to the People’s Republic of China. They formed a group of different types of lawyers – a litigator, a tax lawyer, a criminal lawyer, a judge, etc., and they decided to send a young lawyer as well. They asked me to go.

Since that time, I have served the ABA in numerous roles, including as Chair of the Section of International Law and as Chair of the New York Delegation to the ABA House of Delegates. Most recently, I was a member of the ABA Commission on Women in the Profession and the Commission on Racial and Ethnic Diversity in the Profession.

Editor: How does a young lawyer get involved in the ABA?

Silkenat: Being involved in the ABA helps make you a better lawyer. It enhances your professional experience by helping you in acquiring new skills, improving existing ones, making new contacts with clients and other lawyers, and increasing your visibility.

There are a variety of ways that young lawyers can get involved in the ABA. As I mentioned, I got involved as a young lawyer through my work as Chair of what is now the Lawyers Alliance for New York. Young lawyers can join the ABA Young Lawyers Division (YLD) to identify areas of interest, or they can join a practice-related section or other group ranging from Business Law to Litigation to Solo, Small Firm and General Practice.

Any ABA member can join a committee of the YLD or a section that focuses on various areas of law. In addition to the information and networking resources they provide, committees have needs, from newsletter article writing to meeting planning to speaking opportunities. Lawyers who are interested should contact the section or committee chair and ask how they can learn more and get involved.

Editor: Are there committees that focus on the special concerns of corporate counsel? Do corporate counsel have a place at the table when issues of concern to them are being discussed and ABA positions are taken?

Silkenat: The ABA offers several corporate counsel committees, with the Sections of Administrative Law and Regulatory Practice, Business Law, Litigation and Tort Trial and Insurance Practice, as well as the Forum Committees on the Construction Industry and Franchising.

Through the ABA’s House of Delegates, the Association adopts many positions of interest to and with the input of corporate counsel. We have worked successfully with the Association of Corporate Counsel and others to reverse the Justice Department’s attorney-client privilege waiver policy, pass legislation protecting privileged information that banks submit to the Consumer Financial Protection Bureau and enact Federal Rule of Evidence 502, which is designed to reduce discovery costs and uncertainty. The ABA also encourages greater use of mediation and other types of ADR instead of lawsuits to resolve disputes.

To provide even better services to in-house legal communities in corporations and government, I have formed a new ABA Working Group on Corporate Counsel and Government Lawyers. This effort will also bring in-house lawyers more fully into the day-to-day operations of the ABA at all levels and allow us to provide better services to them. Our effort should spark a much greater interest in the ABA from these important segments of the legal profession.

Editor: Law school graduates are having difficulty finding suitable jobs. Tell us about your support for a Legal Access Job Corps.

Silkenat: Too many law graduates are finding it difficult to gain the practical experience they need to enter practice effectively. At the same time, too many people with low and moderate incomes cannot find or afford a lawyer to defend their legal interests.

The ABA Legal Access Job Corps is designed to help resolve both of these problems. At my request, the ABA has created a task force of experts in legal education, legal aid and legal-service delivery to propose possibilities for providing legal services to underserved populations while offering experience to lawyers who are now entering legal practice.

Some programs like this are already in the works, many through law schools or bar associations. For example, in South Dakota, the legislature and the State Bar have agreed to fund younger lawyers to go to counties that do not have access to lawyers.

The ABA is the only group that can put together such a national program. We want to find out what programs are sustainable and might serve as a model for the rest of the country.

Editor: Based on your involvement with the ABA, please describe other challenges facing the legal profession today.

Silkenat: Aside from the Legal Access Job Corps, we will be working on many issues during my presidential term. One is legal education. Last year, the ABA created a Task Force focused on the future of legal education, and it will be reporting its findings this fall. U.S. legal education is the best in the world, and we have an obligation to make sure that young lawyers are equipped to handle the challenges they may face.

Court funding is a problem at both the state and federal levels. There is already a strong ABA program dedicated to state courts, where the ABA works with individual states to convince legislatures to increase court funding. With sequestration, some of the bad things we have seen happen at the state level are now happening at the federal level. Unless the sequestration problem gets fixed, it is going to hurt citizens nationwide. The ABA must play a role in reminding the public why courts are important, why they need adequate resources to function, and why they can’t be closed one or two days a week.

I also want the ABA to continue our work on gun violence issues, election law reform and immigration. With respect to gun violence, I will push for a national conversation on gun violence issues, in the hopes that lawyers can lead where our legislators have failed to do so. On election law reform, I will continue the ABA’s support for fair and open elections, where every vote counts and where citizens are not impeded from voting, and where candidates are chosen based on the policies they endorse, not the money they raise. With immigration, I will advocate for legislation that leaves room for immigrants to realize their dreams and enrich our society.

Editor: Some law firms have complained that law schools have failed to provide graduates with practice-ready skills. Do you see a role for the ABA in addressing this issue?

Silkenat: The need to develop practical skills in lawyers is a significant part of what is driving the ABA’s Legal Access Job Corps. I believe that our work in this area can expand the availability of opportunities for young lawyers to gain practical experience while helping communities, the legal needs of which are unmet.

Through a 2011 House of Delegates resolution, the ABA urges legal education providers to focus on making future lawyers practice ready through enhancing clinical work and supervised activities. In addition, the ABA’s law school approval standards require schools to provide opportunities for practical-skills training.

A survey of law schools in 2012 by the ABA Section of Legal Education and Admissions to the Bar found that schools in recent years have significantly expanded their clinical and professionalism programs. I think educators are hearing the message, but more, of course, can be done.

Editor: Although women and minorities are better represented in the profession, there is still room for improvement. What more can the ABA do to help?

Silkenat: Diversity in the legal profession is a primary, ongoing goal for the ABA, and there is room for improvement. Among other initiatives, the ABA Commission on Racial and Ethnic Diversity in the Profession produces the annual Minority Counsel Program, which promotes career growth and professional development for racially and ethnically diverse corporate lawyers, both in-house and at firms. The ABA Commission on Women in the Profession’s Women in Law Leadership Academy is a similar program aimed at women lawyers. Both groups also provide tailored career resources and networking opportunities. Almost all of the ABA’s sections and other groups have diversity committees to expand opportunities for all within the association and the profession.

We also need to open paths to legal careers for people of all backgrounds as early as possible. This is the special concern of the ABA Council for Racial and Ethnic Diversity in the Educational Pipeline. Among its programs is the Legal Opportunity Scholarship Fund, which grants 20 incoming diverse law students with $15,000 of financial assistance during the three years of law school. Since the fund's inception, 200 students have received scholarships, and we hope to expand our efforts. The Council, as well as the ABA Section of Litigation and Judicial Division, also sponsor judicial clerkship programs for diverse students.

Editor: What is the role of the ABA in the selection of judges?

Silkenat: An independent judiciary requires fair and competent judges who have been selected based on merit, who are accountable to the judicial code of ethics as well as to the law and the Constitution, and who can rely on the allocation of adequate resources for facilities, security and compensation.

For the federal bench, the ABA Standing Committee on the Federal Judiciary evaluates the professional qualifications of all nominees to the Supreme Court, Circuit Courts of Appeals, District Courts and the Court of International Trade. The Committee limits its evaluations to issues of professional qualifications and does not consider a nominee’s philosophy or ideology. Each committee member spends roughly 1,000 hours per year on a voluntary basis to provide this vital public service.

At the state and local level, the ABA has no direct role in the selection of judges. It is our position, however, that in states where judges are forced to become politicians who run for office, fundraising ability and public opinion can, unfortunately, become more important to judicial selection than knowledge of the law and judicial temperament.

The ABA favors a commission-based appointive system of judicial selection. In states that use other models, we prefer that the politicization of judicial selection be minimized by avoiding contested and partisan elections, providing for terms of significant length for judges who are subject to retention or re-election, ensuring that appropriate guidelines exist for the disclosure of campaign contributions and establishing clearly articulated disqualification procedures.

Editor: What steps should be taken to encourage greater involvement of lawyers in pro bono activities?

Silkenat: We can all be proud to be part of a profession whose tenets include the responsibility to provide services to those unable to pay, and some of my most rewarding practice experiences were pro bono matters. With reductions in legal aid funding and the increase of legal needs due to the economy, the need for pro bono legal services is greater than ever.

For reasons ranging from time constraints to lack of knowledge of opportunities, it can be difficult for some lawyers to provide as many pro bono hours as the bar calls on them to do. The ABA Standing Committee on Pro Bono and Public Service recently released a national survey of pro bono practices, called “Supporting Justice III: A Report on the Pro Bono Work of America’s Lawyers.” Based on the survey results, the report identified strategies to enlist more lawyers to do pro bono, including building and ensuring institutional support for pro bono, increasing pro bono initiatives that are organized and supported by employers, and ensuring strong and effective infrastructure for bar association, legal-services and independent pro bono programs.