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Introduction

Since the drafting of the Constitution, interest groups have been at the forefront of

American politics. The founding fathers acknowledged that citizens would join groups in order

to advance their interests, and they worried that some of the more powerful groups would be able

to control the political process to their benefit (Berry and Wilcox 3). It is unlikely, however, that

the founders anticipated the degree to which money would become a part of the political process.

In today’s political landscape, money often means access, so a group that does not use money to

lobby is seemingly at a great disadvantage. One such interest group that does not use money to

buy access but is still an effective advocate is the American Bar Association (ABA). This paper

will chronicle the history and development of the ABA, describe the advocacy strategies the

ABA uses, address some of the criticisms of the ABA, and conclude with a discussion on the

future of the ABA.

History and Development

The American Bar Association was founded on August 21, 1878 in Saratoga Springs, NY

by a group of 75 lawyers representing 20 states and the District of Columbia. Before the

establishment of the ABA, the legal profession as it is today barely existed. Lawyers were sole

practitioners who trained under a system of apprenticeship, similar to the Abraham Lincoln and

Robert H. Jackson “country lawyer,” there was no national code of ethics for lawyers or judges,

and there was no national organization to facilitate the discussion of the legal profession which

was becoming increasingly intricate (“History of the American Bar Association”).

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Simeon Eben Baldwin, a 38-year old lawyer and member of the Connecticut State Bar

Association, was the “guiding spirit” of the organization’s formation and principal drafter of the

original ABA constitution. In the original constitution, Baldwin wrote that “[the association’s]

object shall be to advance the science of jurisprudence, promote the administration of justice and

uniformity of legislation throughout the Union, uphold the honor of the profession of the law,

and encourage cordial intercourse among members of the American Bar.” It is with this object in

mind that the ABA adopted its mission to “serve equally [its] members, [its] profession and the

public by defending liberty and delivering justice as the national representative of the legal

profession” (“ABA Timeline: American Bar Association Forms”).

The ABA accomplishes its mission through the pursuit of four main goals. The first goal

is to serve its members by providing benefits, programs and services which promote members’

professional growth and quality of life. The second goal is to improve the legal profession by

promoting high quality legal education, competence, ethical conduct, professionalism, pro bono

work, and public service by members of the legal profession. The third goal is to eliminate bias

and enhance diversity by promoting full and equal participation in the association, the legal

profession, and the justice system and eliminating bias in the legal profession and the justice

system. The fourth goal is to advance the rule of law by increasing public understanding of and

respect for the rule of law, the legal process, and the role of the legal profession at home and

abroad, holding governments accountable under the law, working for just laws, assuring

meaningful access to justice for all persons, and preserving the independence of the legal

profession and the judiciary. The items of promoting high quality legal education and ethical

conduct are particularly important functions of the ABA that are deserving of more attention

(“ABA Mission and Goals”).

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In 1921, the ABA recommended standards requiring students complete at least two years

of college, graduate from a three-year law school course of study or its equivalent, and pass an

exam “by public authority” in order to be admitted to the bar. In November 1923, the ABA

published in the American Bar Association Journal a list of 41 schools that complied with its

legal education standards, leading to a formal approval process and, beginning in 1952,

accreditation of law schools. Today, in virtually all American jurisdictions, graduation from an

ABA-accredited law school is a prerequisite to sitting for the bar exam, and the Legal Education

Section’s Council and Accreditation Committees are recognized by the United States

Department of Education as the national accrediting agency for Juris Doctor programs (“ABA

Timeline: ABA Standards for Legal Education”). The ABA’s standards for accreditation,

especially the perceived relationship between the accreditation standards and the rising cost of

law school tuition as well as law schools implementing affirmative action programs to retain

their accreditation, have come under fire in recent years. These criticisms will be elaborated upon

later in this paper.

Also deserving of more attention are the ABA’s codes of ethical conduct. In 1908, the

ABA adopted the first national standards of ethics for lawyers, the Canons of Professional

Ethics. “The future of the Republic,” the Canons state, “depends upon our maintenance of Justice

pure and unsullied” and “cannot be so maintained unless the conduct and motives of the

members of our profession are such as to merit the approval of all men.” So while the Canons

were a code of professional ethics for ABA members, they were also a statement by the ABA on

what a model system of justice should resemble. The Canons included items dealing with the

duty of the lawyer to the courts, the selection of judges, attempts to exert personal influence on

the court, the counsel of indigent prisoners, the defense or prosecution of those accused of a

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crime, and professional conflicts of interest (“ABA Canons of Professional Ethics”). In 1969, the

Canons were replaced by the Model Code of Professional Responsibility which revised its

predecessor by covering conduct by lawyers that had been only partially covered or omitted by

the Canons, reviewing some Canons that were sound in substance but in need of editorial

revision, changing some Canons which did not lend themselves to practical sanctions for

violations, and updating professional principles to reflect the changing legal system and more

urbanized society (“ABA Model Code of Professional Responsibility”). Despite these changes,

the 1969 Model Code was barely more than a simple restatement of the Canons, which were

themselves barely more than a simple restatement of Alabama’s 1887 Code (“ABA Model Code

of Professional Responsibility”). In 1977, in the aftermath of the Watergate scandal in which

many lawyers were caught up in illegal and immoral behavior, the concept of lawyers as a self-

governing and self-policing body began to take major criticism, which will be elaborated upon

later in this paper, and the ABA Commission on Evaluation of Professional Standards was

established. Furthermore, because the legal profession had evolved so much (for example, with

lawyers representing large corporations, it was unclear whether the lawyer represented the

corporate entity, the board, individual directors, etc.), the 1969 Model Code, which was born out

of 1887 Alabama, was outdated to say the least. In 1983, after six years of drafting and revising

proposals, the Model Rules of Professional Conduct were adopted by the ABA (“The Kutak

Commission”). The Model Rules addressed the contentious issue of self-policing of the legal

profession by acknowledging that, while there would be pushback on certain issues and leeway

on the Model Rules when butting heads with certain local traditions and practices, there must be

disciplinary standards and the voluntary adherence to such standards is necessary (“The Kutak

Commission”). Perhaps the most contentious issue of the Model Rules was the idea that lawyers

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have obligations not just to their clients but to society in general (“The Kutak Commission”).

Despite the debate and the arduous enactment process, the Model Rules remain the standard

today, and have been adopted by the bar associations of 49 states (California, the largest state bar

in the US, is the lone holdout), the District of Columbia, and the US Virgin Islands (“ABA

Model Rules of Professional Conduct”).

In the just-over-100 years since the founding of the ABA, the association succeeded in

two components of its goals by promoting the highest quality legal education and establishing a

national system of legal ethics. The remainder of this paper will focus on the advocacy strategies

of the ABA, as well as discuss some criticisms and possible future directions for the association.

Advocacy

The ABA is a non-partisan, voluntary membership organization. It does not operate a

political action committee—although it does operate a 501(c)(3)—, it does not make political

contributions, and it does not endorse candidates for office (“Governmental & Legislative Work:

About Us”). That being said, the ABA still makes its voice heard in Washington through other

means, principally through the Governmental Affairs Office (GAO), but also through the

submission of amicus curiae briefs and the rating of federal judicial nominees.

I. The Governmental Affairs Office (GAO)

The GAO is the “eyes, ears, and voice” of the organized bar in DC and is the main

conduit between the ABA and the governmental entities the ABA seeks to influence

(“Governmental & Legislative Work: About Us”). The Office is the lobbying arm of the ABA

and employs 13 registered lobbyists, each with different portfolios and issue areas (Cook, Holly.

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Telephone interview). It advocates on a broad range of issues, officially chosen by the 550-

member ABA House of Delegates, but every issue on which they lobby is related to the

advancement of the four main goals from their mission statement: serve its members, improve

the legal profession, eliminate bias and enhance diversity, and advance the rule of law

(“Governmental & Legislative Work: Priorities & Policy”).

The ABA has stances on issues ranging from elder law to maritime law, election law to

anti-terrorism law, but their primary legislative priorities include access to legal services,

criminal justice system improvements, immigration reform, international rule of law, legal

education, and national security and civil liberties (“Governmental & Legislative Work:

Priorities & Policy”). Holly Cook, principal deputy director of the GAO, said that, while

legislative priorities of the GAO are mostly issues pertaining to the legal profession and are

ultimately chosen by the ABA House of Delegates, the GAO lobbies for issues that are for the

good of the public, not just for the good of the legal profession or the good of the ABA

(Telephone interview). For instance, while in April 2015, the ABA lobbied against the Lawsuit

Abuse Reduction Act and tax proposals affecting law firms the Association found harmful—both

items pertaining largely to the legal field—the ABA in March 2015 issued a letter to the

Secretary of Homeland Security expressing concerns about the expansion of immigration

detention and a letter to the Florida Senate’s Committee on Criminal Justice reiterating the

importance of jury unanimity in capital punishment sentencing—items that, while concerns to

members of the legal profession, are nonetheless salient issues to many members of the general

public (“Governmental & Legislative Work: What’s New in Washington”).

Aside from sending letters to committee chairs and department secretaries, the GAO

arranges for ABA expert witnesses to testify before various congressional committees and

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governmental entities, meets regularly with relevant members of Congress and their staffs,

maintains an active grassroots lobbying structure, communicates with state and local bar groups

to notify them of important legislative developments near their jurisdictions, and monitors and

reports on legislative and executive developments that concern the bar (“Governmental &

Legislative Work: About Us”). The GAO primarily deals with Congress, specifically the House

and Senate Judiciary Committees, as well as the Senate Committee on Health, Education, Labor

and Pensions, the House and Senate Homeland Security Committees, and the House and Senate

Armed Services Committees (Telephone interview). In addition to interacting with Congress, the

GAO also works with various federal agencies, such as the Department of Defense, the National

Security Agency, the Internal Revenue Service, and the Department of Veterans Affairs

(Telephone interview). These congressional committees and federal agencies were specifically

mentioned by Cook, but she also stressed the importance of the fact that this list is not

exhaustive. While the GAO frequently interacts with the aforementioned committees and

agencies, the Office will work with any committee or agency whose policies interact with the

legislative priorities of the ABA (Telephone interview).

While the GAO does not operate a PAC, make political contributions, or endorse political

candidates, its relationship with the aforementioned committees and agencies must still be

understood through the political context of the times. The issues and legislative priorities of the

GAO do not change depending on which party controls the White House or Congress; regardless

of which party controls the government, the GAO still works with the legislative and executive

branches in furtherance of the ABA mission and goals (Telephone interview). The relevant

political context for the GAO is to understand what sort of legislation is being introduced, what

committees and members are involved, and what points of contact should be used when working

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with a Democratic government or a Republican government (Telephone interview). There is no

“ideal” outcome of the 2016 elections for the GAO, however, they do use predictive techniques

to estimate which party will be in power and what legislation is likely to be introduced in order

to stay ahead of electoral volatility and hit the ground running when each new session of

congress and presidential administration begin (Telephone interview).

Furthermore, because the GAO does not operate a PAC, make political contributions, or

endorse candidates, some—even within the ABA, as Cook acknowledged—may feel that the

ABA and the GAO are at a disadvantage, especially in today’s post-Citizens United landscape in

which money equals speech and more money equals more speech. Cook, however, disagrees.

She feels that because the issues the GAO focuses on either specifically deal with the legal

profession or are not issues that are typically embraced by special interest groups, they do not

face a great deal of legislative competition (Telephone interview). For instance, because the

ABA is such a well-known legal entity, its positions on issues affecting the legal profession

generally receive a substantial amount of attention from legislators because of the respect and

reputation of the Association, not because of campaign donations. Furthermore, the issues

advanced by the GAO that do not deal with the legal profession, such as the expansion of

immigration detention and jury unanimity in capital punishment cases, are not issues typically

embraced by most special interest groups, so the GAO does not encounter a great deal of friction

when advocating for these issues (“Governmental & Legislative Work: What’s New in

Washington”). In addition, because the GAO employs such a vibrant grassroots advocacy

strategy, in which it makes it very convenient for individual ABA members to contact their

representatives on issues of concern to the bar, their clients, the legal profession, and our justice

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system, Cook believes grassroots advocacy supplants the need for operating a PAC, making

contributions, or endorsing candidates (Telephone interview).

While the ABA and GAO do not use money to influence politics, the ABA does have a

501(c)(3) arm to allow for the solicitation and acceptance of tax-exempt gifts and grants in

support of public legal services and educational programs, known as the ABA Fund for Justice

and Education. Founded in 1963, the Fund for Justice and Education accepts donations and

grants from ABA members, the American Bar Endowment, law firms, corporations, foundations,

and government entities to fund over 200 ABA programs that provide lawyers with the skills and

resources they need to help better address the legal needs of members of their communities

(“The Fund for Justice and Education: About Us”). Of the $53,140,288 in total contributions for

fiscal year 2013, the following chart breaks down the distribution for where the contributions

came from (“American Bar Association Fund for Justice and Education”):

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Of the $66,791,540 in expenses for fiscal year 2013, the following chart breaks down the

distribution for how the money was spent (“American Bar Association Fund for Justice and

Education”):

In summary on the GAO, while the ABA does not operate a PAC, make political

contributions, or endorse political candidates, the GAO is the main avenue through which the

ABA asserts itself in the fields of legislative and executive policymaking. The GAO takes

policies that are passed by the ABA House of Delegates and puts them in front of the relevant

policymakers, facilitates other lobbying efforts, and functions within a political context.

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II. Amicus Curiae briefs

The status of the ABA as a legal entity provides it a unique pathway to influence: the

writing of amicus briefs. The ABA only occasionally files amicus briefs, but when it does, the

brief must constitute a significant contribution to the Court’s consideration of the legal issue,

fairly represent ABA policy as adopted by the House of Delegates, and be of high professional

quality, as determined by the seven-member Standing Committee on Amicus Curiae Briefs

(“Memorandum for Those Interested in Submitting an Application for an ABA Amicus Curiae

Brief” 3). These criteria relate back to the ABA’s founding mission and goals, as there is no

strict limit to the positions or issues that can be addressed in ABA amicus briefs, but the

submission of the brief must be in relation to ABA goals and cannot assert itself on a national or

state constitutional or statutory law issue unless there is ABA policy in accordance with the

position and issue (“Memorandum” 9). These briefs take the term amicus curiae seriously, as a

good ABA amicus brief strives to truly be a friend of the court, maintaining a neutral and

respectful tone, not giving direction to the court but merely assisting the court in its consideration

of the issues and speaking with a unified voice of lawyers on both sides of the debate

(“Memorandum” 9). In recent years, most ABA amicus briefs have been filed in the US Supreme

Court, but occasionally they are authorized in state supreme courts or federal courts of appeals

(“Memorandum” 4).

Most recently, ABA briefs have been filed on issues dealing with the legal profession and

with high-salience issues that are in accordance with the Association’s mission and goals

(“Amicus Curiae Briefs”). For instance, the gay marriage case currently before the Supreme

Court inspired ABA members to write a brief encouraging the Court to rule in the affirmative,

that the 14th Amendment does require a state to license a marriage between to people of the same

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sex. In December, ABA members filed an amicus brief in support of the Florida Supreme

Court’s decision to prevent a candidate for judge from personally soliciting campaign funds.

In summary on amicus briefs, the ABA, being a legal organization, has substantial

influence in the court system when it decides to write an amicus brief. The ABA does not

regularly submit amicus briefs, but when it does, they are usually to the Supreme Court and

regard issues pertaining to the legal profession or high-salience issues that are in relation to the

ABA mission and goals.

III. Rating of Federal Judicial Nominees

The third and final advocacy method is the ABA’s rating of federal judicial nominees.

The Standing Committee on the Federal Judiciary evaluates the professional characteristics of all

nominees to the US Supreme Court, circuit courts of appeals, district courts (including territorial

district courts), and the Court of International Trade (“Federal Judiciary: About Us”). The goal of

the rating of judicial nominees is to promote the selection of the most-qualified candidates to the

federal judiciary, so the committee only considers professional qualifications of a candidate,

ignoring the nominee’s judicial philosophy and personal ideology and focusing on integrity,

professional competence, and judicial temperament (“Federal Judiciary: About Us”). The rating

system assigns a grade of “not qualified,” “qualified,” or “well qualified” to the nominee, and

can also include the committee testifying in the Senate Judiciary Committee if it rates a Supreme

Court nominee as “not qualified” (“Federal Judiciary: About Us”).

There is some debate as to the relevance of the rating process. In March 2001, the Bush

administration announced it would no longer seek the opinion of the ABA before nominating

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candidates to the federal judiciary, arguing that, because the ABA “takes public positions on

divisive political, legal, and social issues that come before the courts,” it would be inappropriate

to give the ABA preferential treatment in the judicial nomination process (Little 37). The irony is

not lost on the fact that President Bush instead turned to the Federalist Society and other far-right

legal groups for their opinions on his judicial nominees, so it was not as though the ABA was too

political, but too politically different from Bush (Little 38), which is a criticism of the ABA in its

own right to be elaborated upon further.

In summary on judicial ratings, the rating of federal judicial nominees is an important

function of ABA advocacy, albeit not as important as the GAO or the submission of amicus

briefs. The ABA rates all nominees for federal judgeships between “not qualified” and “well

qualified,” focusing solely on professional qualifications and not personal qualifications. It is

unclear exactly how much influence the Association has on the nomination process, as President

Bush decided to stop sending his choices to the ABA before he nominated them, therefore the

ABA’s opinion and influence is only as strong as it is welcomed by the President.

Criticism

As mentioned previously, the notion of lawyers as a self-policing and self-regulating

body took major flak following Watergate, and continues to take major flak today. The preamble

to the ABA Model Rules “maintains an emphasis on the importance of self-regulation,

presenting the Model Rules themselves as a form of self-regulation despite the fact that the Rules

are intended to be adopted as enforceable law by state supreme courts” (Zacharias 1149). In the

early days of the American legal system, when the strictest regulation was whether or not a judge

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admitted a lawyer to practice in his court, it could be reasonably assumed that the legal

profession was self-regulating (Zacharias 1157). The drafting of the Model Rules was the ABA’s

attempt to show that the legal profession was capable of regulating itself, but many observers felt

the profession was simply another industry needing regulation, resulting in the six-year drafting

process (Zacharias 1164). In the years since the adoption of the Model Rules, more state supreme

courts have taken control of the disciplinary process of lawyers, enforcement resources have

increased, disciplinary prosecution offices were reorganized and revitalized, and decisions about

the discipline of lawyers have become more easily accessible to the public (Zacharias 1166-7).

Furthermore, criminal prosecutors, particularly at the federal level, started to increasingly target

lawyers, focusing especially on the interactions between lawyers and their clients in furtherance

of criminal acts that might not be privileged (Zacharias 1169). And perhaps most importantly,

federal agencies have imposed their own regulations on lawyers, such as during the banking

crises of the 1970s and 1980s when the Office of Thrift Supervision punished law firms that had

represented banking institutions that were in violation of federal law (Zacharias 1170). In short,

“the professional codes adopted by the ABA no longer are sufficient to foreclose other regulation

and, indeed, do not represent self-regulation even in their own disciplinary enforcement”

(Zacharias 1171).

Another criticism is over the ABA’s law school accreditation standards. Because the

ABA is recognized by the United States government and all state bar jurisdictions as the setter of

standards for legal education, the ABA has been criticized as a monopoly, limiting competition

and making tuition prohibitively expensive (Segal). ABA standards, such as the prohibition of

adjunct-only faculty and the expectation that faculty members produce scholarship, likely do not

have much of an impact on large, well-established law schools that charge high tuition, but have

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a disproportionate effect on smaller, newer law schools that charge less in tuition and appeal to

less wealthy students (Segal). Furthermore, ABA standards require law schools to engage in

racial preferences in hiring and admissions, regardless of any preexisting laws that conflict with

the policy (Bernstein). Studies such as one by Richard Sander of UCLA purport that students

who benefit from such affirmative action admissions programs usually struggle while in school

and either end up in the bottom of their class or do not graduate at all (Bernstein). It does seem a

bit counterproductive to force law schools to comply with ABA standards by increasing diversity

admissions only to have them be at a disadvantage once they actually start school.

A final criticism of the ABA comes from the right. The ABA, somewhat deservedly, has

been criticized for being too liberal, as evidenced by President Bush’s ending of the ABA’s role

in the judicial nomination process and the ABA’s insistence on affirmative action policies. It

makes sense, however, that the ABA will have a liberal lean, as lawyers are a historically loyal

voting bloc in the Democratic Party.

In summary, the ABA’s most substantial criticisms have come from the self-regulation of

the legal profession, the accreditation standards for law schools, and liberal bias.

Future of the ABA and Conclusion

According to Holly Cook, the future of the GAO, and the ABA more generally, is

unlikely to be much different from it is now. The ABA and GAO will probably concern

themselves with the same issues and will continue to monitor the needs of the legal community

in furtherance of its mission and goals (Telephone interview). There is a hopeful trend, according

to Cook, that people are beginning to care more about the judicial and political system and

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realizing that it should not just benefit the wealthy or the privileged. The ABA is more than just

an organization of lawyers, the ABA is an interest group that uses logic, persuasion, and

expertise—hallmarks of successful lawyers—to lobby the government, without the use of

money, on issues that are of great concern to not just lawyers, but to society at large.

Works Cited

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n.d. Web. 2 May 2015.

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Bernstein, David E. “Affirmative Blackmail.” WSJ.com. Wall Street Journal, 11 Feb. 2006. Web.

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Berry, Jeffrey M. and Clyde Wilcox. The Interest Group Society. New York: Longman, 2009.

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Cook, Holly. Telephone Interview. 2 May 2015.

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Little, Laura E. “The ABA’s Role in Prescreening Federal Judicial Candidates: Are We Ready to

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