Making Progress: Restoring Court Authority Over Litigation Act


In recent years, the American Bar Association (ABA) and its allies, including NCBA, have worked hard to protect the independence of the legal profession and judicial oversight of lawyers. These joint efforts come in many forms – from lobbying Congress to working to have the CFPB’s meaningful involvement safe harbor provision removed from Reg. F – and involve countless hours of work behind-the-scenes.

We are pleased to report on progress in two areas – ABA’s recent ENABLERS Act victory, and ABA’s and NCBA’s Restoring Court Authority Over Litigation Act, the latter an ongoing project and not technically a victory…yet.

Adopted by the ABA’s Board of Governors, these issues fall under the ABA’s Judicial Oversight of the Legal Profession legislative priority. This is a significant win for NCBA. When NCBA began this journey years ago few thought NCBA would be prominently identified as part of the ABA’s legislative priority, yet here we are.

The ABA wrote in their most recent Summary of Advocacy Issues for its members:

Ongoing efforts to protect the profession, include the following:

Persuaded Congress to reject the proposed ENABLERS Act, which would regulate many lawyers and law firms as “financial institutions” under the Bank Secrecy Act. If enacted, the legislation could require lawyers and law firms to submit secret Suspicious Activity Reports on their clients’ financial transactions (without notifying their clients); disclose other attorney-client privileged or confidential client information to the government; or comply with some or all of the BSA’s other requirements for banks and other financial institutions. In response to the concerns raised by the ABA and its allies, Congress decided not to include the ENABLERS Act language in the final FY 2023 National Defense Authorization Act that was signed into law earlier this year. (See ABA Letter to Senate Leaders)

In addition to the lobbying victories above, the ABA is vigorously opposing attempts by Congress and federal and international agencies to impose excessive new regulations on U.S. lawyers engaged in the practice of law and their law firms, and it is working to enact new legislation to preserve longstanding judicial regulation and oversight of the legal profession. For example:

The ABA and the National Creditors Bar Association are also urging Congress to enact the Restoring Court Authority Over Litigation Act, which would help preserve judicial regulation and oversight of the legal profession. The bill would clarify that litigation attorneys should be regulated and disciplined solely by courts, federal agencies have no authority to regulate attorneys’ litigation activities or impose special litigation rules on certain types of attorneys beyond standard court rules, and parties in litigation have no federal private right of action against the other side’s attorney for alleged litigation misconduct. (See ABA Restoring Court Authority Over Litigation Act webpage).