A Proposal to Amend the Constitution of the American Bar Association

by Kevin Scudder August 23, 2013


Despite its institutional stance against the Uniform Collaborative Law Act I remain a member of the American Bar Association. I do so because the ABA is a strong voice for Pro Bono legal services and, as reflected in David L. Hudson’s article in the June 2013 edition of the ABA Journal on ethics and unbundled legal services, a proponent of access to justice for those of limited means.

As an institutional entity the ABA has protocols, one of them being the publication of proposed amendments to the constitution, bylaws and house rules of procedure of the ABA. These were printed in the July 2013 edition of the ABA Journal.

Of specific interest to me was the proposal of one E.H. Jacobs to amend § 1.2 of the ABA’s Constitution to add the following language to the list of stated purposes of the ABA:


“ . . . to defend the right to life of all innocent human beings, including all those conceived but not yet born.”


I am not so naïve as to think that everyone who reads this post would find such an amendment offensive and / or off-base, and I know many would find such an amendment troublesome and inappropriate for an organization such as the ABA. 

Mr. Jacobs’ proposal made me think about our Collaborative clients and what proposal I would make to amend the Constitution of the ABA to address the rights of clients to choose and have access to the Collaborative process.

First, as a lawyer I approve of the word “defend". Depending on what I choose to defend, I can enjoy the  feeling which  arises out of doing something I consider admirable. I strongly believe that a person has the right to determine the appropriate course of action for himself or herself. Ultimately believing in a person’s right of self-determination, I would not choose to defend a proposal to limit or deny a person, their right to make personal choices concerning their own welfare. So I would defend “the right to choose”. “Rights” are an important aspect of freedom. People exercising the “right” of self-determination need to be validated so they can freely  resolve issues personal to them.

Secondly, as an ABA member, I have to determine whose rights I think the ABA should support. As stated above the Pro Bono and limited means areas are already being addressed. Another of the proposed amendments listed in the ABA Journal is one to change § 6.8(a) of the ABA Constitution to reinstate the National Legal Aid and Defender Association as an affiliated organization of the House of Delegates. This amendment would protect the rights of criminal defendants.

For my proposal I have settled on the population of “families in transition”. For me this covers everything from families with children and no children, same-sex and heterosexual families, paternity, and probate cases. 

Third, I would NOT include the word “innocent” as a qualifier for a person to be covered by my proposal. I do not believe that only innocent people deserve to have their rights defended. Also, aren’t all of our clients innately “innocent”? And equally “guilty” of something? Innocent or guilty, don’t all of our clients have a “right” to be defended? If not, we should not be doing the Collaborative work that we do. And isn’t it the “guilt” or shame or hard feelings or sadness that provides the best fodder for us as Collaborators to help our clients reach durable agreements and perhaps even transform? So I will not exclude the guilty ones from my proposal. I will welcome them.

As to “those conceived but not yet born”, besides the moral, religious and ethical considerations, this population is hard to market to so, for the time being, I am not including them in my proposal.

Fourth, what “right to” do I seek to defend? This is where my proposal to the ABA comes together. As I think about this task I demur to my Elevator Speech and how when given an opportunity to share with someone what I do, why I do it, and how it is helpful to my listener or someone they know, it comes out smoothly, confidently and with authority.

So here is my proposal: 


I propose to the American Bar Association that § 1.2 of the ABA’s Constitution be amended to add the following language to the list of stated purposes of the ABA:

“ . . . to defend the right of families in transition to a legal process that reflects their sense of fairness and justice and which is safe, respectful, efficient, client-driven, and transparent.”


And here is yours to fill in the blanks and share with our community:


I propose to the American Bar Association that § 1.2 of the ABA’s Constitution be amended to add the following language to the list of stated purposes of the ABA:

“ . . . to defend the right of ___________________________________________________________________



Please send me your proposals. I will gather these and submit them to the American Bar Association for its Annual Conference in 2014.

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