Issues of race and discrimination are in the forefront of problems confronting today's society. Lawyers and the legal profession must take the lead in how to address and overcome inequities emanating from bias in these areas. On the one hand, it is crucial for the legal profession to celebrate and encourage diversity at all levels, while, on the other, it must lead in combatting bias on the basis of race, gender, ethnicity, religion, sexual orientation or other differences. These principles should guide lawyers in fulfilling their professional responsibilities as members of the bar generally, as well as in their representation of clients. One way in which the legal profession can sensitize itself to the scope and extent of these problems and potential avenues for remediation is through continuing legal education (CLE). Two states, California and Minnesota, already require attorneys to meet diversity and inclusion requirements. Beginning Jan. 1, 2018, New York's mandatory CLE requirements includes a Diversity and Inclusion component. Attorneys due to re-register on or after July 1, 2018 must meet the new CLE requirements.

Background

In February 2016, the American Bar Association's House of Delegates unanimously adopted a resolution entreating those regulating authorities that have a mandatory or minimum CLE requirement to also include a diversity and inclusion component. ABA Resolution 107. In New York state, the resolution gained overwhelming support from a number of local and specialty bar associations.

In July 2016, Chief Judge Janet DiFiore received a letter signed by 13 bar associations urging New York state to mandate that diversity and inclusion be included as a CLE requirement. The bar associations that signed the letter were: the New York City Bar Association, the Amistad Long Island Black Bar Association, Association of Black Women Attorneys, Association of Law Firm Diversity Professionals, Dominican Bar Association, Hispanic National Bar Association, Jewish Lawyers Guild, LGBT Bar Association of Greater New York (LeGaL), Long Island Hispanic Bar Association, Metropolitan Black Bar Association, Muslim Bar Association of New York, Puerto Rican Bar Association, and South Asian Bar Association of New York.

In response to the letter, OCA CLE Board Chair Betty Weinberg Ellerin and the New York State OCA CLE Board met to discuss the proposed mandatory diversity and inclusion CLE. During their meetings, the Board examined a survey supplied by the New York City Bar Association, outlining CLE program offerings that would meet the diversity and inclusion requirement. The Board also reviewed the diversity and inclusion programming being implemented by California and Minnesota.

There was also a perception that the large law firms were the only CLE providers that were offering such programs. Such was a misapprehension given the fact that WBASNY and the other affinity bar associations mission statements are dedicated to diversity and the diversity requirement, which at the time had yet to be defined. “Diversity” CLE programing was regularly offered under different rubrics or headings. For instance, discrimination in employment settings; lack of civility as part of ethics programs; “Breaking the Glass Ceiling,” “Tips for Women on Running for Office” and the “Pink Bench.” Moreover, the three largest Bar Associations, WBASNY, NYSBA and NYSTLA, as well as other bar associations, lawyers and law firms had not had an opportunity to comment on the proposal.

In trying to define the new CLE Diversity Rule, the OCA CLE Board discussed whether it should follow the New York Rules of Professional Conducts RPC 8.4, which provides in pertinent part: “A lawyer or law firm shall not … (g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation.” 22 NYCRR 1200 RPC 8.4(g). However, after discussion, it was decided that the definition would be more expansive to enable the CLE Providers and attendees more options for programming which would meet the new Diversity and Inclusion requirement. Thus, the new diversity and inclusion programming must relate to the practice of law and may include, among other things, implicit and explicit bias, equal access to justice, serving a diverse population, diversity and inclusion initiatives in the legal profession, and sensitivity to cultural and other differences when interacting with members of the public, judges, jurors, litigants, attorneys and court personnel.

In addition to discussing the definition of the new “Diversity Rule,” the Board considered compliance issues as well as whether the new requirement would mean that we would need to add one or two additional CLE credits. Judge Ellerin felt and most of the OCA CLE BOARD agreed that lawyers should not be burdened with additional credit requirements. So, it was agreed that the new requirement could be a new category among the 24 and 32 credits that are already required for attorneys and newly admitted attorneys.

In December 2016, the OCA CLE Board proposed an amendment of the New York MCLE Rules for New York attorneys recommending that there by a one-credit CLE requirement in Diversity and Inclusion. The Board also issued a memorandum, calling for public comment on the proposed amendment, which received overwhelming support from bar associations, lawyers and law firms throughout New York state.

The New Rule was presented to Chief Judge Janet DiFiore and the Courts Administrative Board, which includes the Presiding Justices of the Four Appellate Divisions. The Administrative Board approved the proposal creating a new diversity and inclusion category for New York's mandatory CLE requirements.

New Diversity and Inclusion Requirement

The new rule can be found at 22 NYCRR 1500.2(g); it now states: “a) Credit Hours. Each attorney shall complete a minimum of 24 credit hours of accredited continuing legal education each biennial reporting cycle in ethics and professionalism, skills, law practice management, areas of professional practice, or diversity, inclusion and elimination of bias, at least four (4) credit hours of which shall be in ethics and professionalism and at least one (1) credit hour of which shall be in diversity, inclusion and elimination of bias. Ethics and professionalism, skills, law practice management, areas of professional practice, and diversity, inclusion and elimination of bias are defined in §1500.2. The ethics and professionalism and diversity, inclusion and elimination of bias components may be intertwined with other courses.” 22 NYRR 1500.22(a).

As a result, New York attorneys will have to complete one credit in the topic area of Diversity, Inclusion and Elimination of Bias as part of their mandatory continuing legal education requirements. The change will take effect beginning with attorneys due to re-register on or after July 1, 2018.

With the implementation of the Diversity and Inclusion requirement, the 24 required credits for experienced attorneys will stay the same, but the categories of credit requirements will slightly change. Experienced attorneys will still be required to complete four credit hours in ethics and professionalism and will be required to complete one credit hour in diversity, inclusion, and elimination of bias. Newly-admitted attorneys (less than two years) are required to complete 32 CLE credits in their first two years of admission, broken down into 16 credits each year with defined categories and credits in Ethics in Professionalism (6); Skills (12) and Law Practice Management and/or Areas of Professional Practice (14).

The CLE Board members who worked with Justice Ellerin and her staff to adopt the changes are Prof. Melissa L. Breger, Vincent T. Chang, Hon. Leland G. DeGrasse, Hon. Timothy S. Driscoll, David L. Edmunds, Jr., Cynthia Feathers, Hon. Helen E. Freedman, Nicholas A. Gravante Jr., Linda S. Lin, Hon. William E. McCarthy, Timothy P. Murphy, Deborah A. Scalise, Hon. Bernice D. Siegal, and Hon. Charles J. Thomas.

Conclusion

With the addition of the diversity and inclusion CLE requirement, the CLE Board has helped to educate New York attorneys to take steps to overcome the challenges of diversity in the legal profession. Diversity training will help New York attorneys to become better lawyers by facilitating improved attorney-client relationships, increasing attorney awareness and understanding diverse client needs. All of which will not only enhance legal services but will inure to the benefit of the legal profession, by opening the legal system as well as the profession to all people, regardless of race, gender, ethnicity, religion, or orientation.

Betty Weinberg Ellerin is the chair of the NYS OCA CLE Board and senior counsel at Alston & Bird. She served more than 20 years as an Appellate Division jurist. Deborah A. Scalise was appointed to the OCA CLE Board by Chief Judge Janet DiFiore in 2016. She is a partner in the firm Scalise & Hamilton. Gina Bucciero works as a legal assistant at Scalise & Hamilton.