Many disputes at mediation arise out of the perceptions, misperceptions, or biases of one or more parties. How the legal advisor perceives these perceptions when the parties tell their side of the story directly impacts the subsequent advice to the clients. How the mediator perceives the facts, parties, and their counsel can similarly be a function of one or more biases. Overt bias, unconscious bias, and outright discrimination can play a role in the advice provided by attorneys to clients in general; at mediation, these factors can play a role in how the mediator interacts and communicates with the parties and/or their attorneys. Education about biases can help attorneys and mediators alike. Some states now require attorneys to take CLE (Continuing Legal Education) on these topics. This blog surveys states with requirements of this type.
Four of the states below have mandatory / integrated bars: Florida, Missouri, Oregon, and West Virginia. (Texas has a mandatory / integrated bar). This matters because Keller v. State Bar of California, 496 U.S. 1 (1990), holds that attorneys who are required to be members of a state bar association have a First Amendment right to refrain from subsidizing the organization’s political or ideological activities. How these MCLE programs are designed may turn on whether the Bar is voluntary membership or mandatory membership. These are the states and MCLE program requirements:
California – Voluntary Bar
Here is the California MCLE requirement found in Rule 2.72 (a)(2):
“…at least one hour dealing with the recognition and elimination of bias in the legal profession and society by reason of, but not limited to, sex, color, race, religion, ancestry, national origin, physical disability, age, or sexual orientation…”
Florida – Mandatory / Integrated bar
This is the Florida MCLE requirement:
“b) Minimum Hourly Continuing Legal Education Requirements. Each member must complete a minimum of 33 credit hours of approved continuing legal education activity every 3 years. Five of the 33 credit hours must be in approved legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness programs and 3 of the 33 credit hours must be in approved technology programs. Courses offering credit in professionalism must be approved by the center for professionalism. These 5 hours, which are to be included in, and not in addition to, the regular 30-hour33 credit hour requirement. If a member completes more than 3033 credit hours during any reporting cycle, the excess credits cannot be carried over to the next reporting cycle.” (emphasis added)
See also: https://law.justia.com/cases/florida/supreme-court/2016/sc16-574.html.
Florida further defines “bias elimination” as follows: “(f) Bias Elimination. Credit may be awarded for courses that address standards of conduct in the legal profession related to the recognition and elimination of bias, such as gender, ethnicity, religion, disabilities, age, or sexual orientation. Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideals and goals of professionalism.”
Illinois – Voluntary Bar
Illinois MCLE includes a requirement of “(i) At least one hour in the area of diversity and inclusion…”
See (d)(2)(i) here: https://courts.illinois.gov/SupremeCourt/Rules/Amend/2017/040317_Rule_794.pdf
Maine – Voluntary Bar
Maine’s MCLE requirement is as follows: ” (3) As part of the required credit hours referenced in Rule 5(c)(1), attorneys must earn at least one in-person credit hour in the recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law as set out in the Maine Rules of Professional Conduct. Qualifying topics include harassment or discriminatory communication or conduct on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity. The credit hour required by this section is separate from and in addition to the credit hour required by Rule 5(c)(2)”
See Rule (5)(c)(3) here: https://mebaroverseers.org/regulation/bar_rules.html?id=638733#:~:text=(1)%20Every%20attorney%20with%20an,credit%20hours%20per%20calendar%20year.&text=(2)%20As%20part%20of%20the,hour%20in%20Ethics%20and%20Professionalism.
Minnesota– Voluntary Bar
This is Minnesota’s MCLE requirement:
“Minnesota-licensed lawyers on active status must report at least 45 continuing legal education (CLE) credit hours every three years. Included in the 45 credit hours must be a minimum of 3 ethics or professional responsibility credit hours and a minimum of 2elimination of bias credit hours. A lawyer may claim up to 15 hours of credit within the45 hour CLE period for on-demand courses as defined in Rule 2R.”
See also: https://www.cle.mn.gov/rules/#2 which states: “G. “Course in the elimination of bias in the legal profession and in the practice of law” means a course directly related to the practice of law that is designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation.”
Missouri – Mandatory / Integrated Bar
Here is Missouri’s MCLE requirement: “1) at least three of the total 15 credit hours must be devoted exclusively to accredited ethics programs, seminars, and activities, including professionalism, substance abuse, mental health, legal or judicial ethics, malpractice prevention, explicit or implicit bias, diversity, inclusion, or cultural competency; and 2) at least one of the three ethics credit hours required under Rule 15.05(a)(1) must be devoted exclusively to explicit or implicit bias, diversity, inclusion, or cultural competency.”
New Jersey – Voluntary Bar
New Jersey has no MCLE requirement yet, as of the publication of this blog; however, the New Jersey State Bar Association (NJSBA), on July 10, 2020, asked the New Jersey Supreme Court to amend mandatory continuing legal education (CLE) requirements for attorneys to include programs on diversity, inclusion and the elimination of bias. This is the proposal:
That “New Jersey require two credit hours of CLE dedicated to education on issues of diversity, inclusion and the elimination of bias in each two-year cycle. One of those two credit hours be eligible to be applied to satisfy the current requirement for four ethics credits in each cycle. The two diversity, inclusion and elimination of bias credit hours be incorporated in the current mandate for 24 credits to be completed in each two-year cycle.”
New York – Voluntary Bar
Here is the New York MCLE requirement: “(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 credit hours of which shall be in ethics and professionalism and at least one 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 section 1500.2 of this Part. The ethics and professionalism and diversity, inclusion and elimination of bias components may be intertwined with other courses. (emphasis added).
NY also has an FAQ on point: https://ww2.nycourts.gov/sites/default/files/document/files/2018-10/12n%20-%20FAQs%20-%20Diversity%20Equity%20and%20Inclusion%20of%20Bias.pdf).
Oregon – Mandatory/Integrated Bar
Oregon’s requirement as amended effective July 7, 2020 states:
“3.2(b) Ethics. At least five of the required hours shall be in subjects relating to ethics in programs accredited pursuant to Rule 5.14(a).” Oregon’s requirement goes on to explain: “5.14 Ethics, Child and Elder Abuse Reporting, Mental Health and Substance Use Education, and Access to Justice. (a) In order to be accredited as an activity in legal ethics under Rule 3.2(b), an activity shall be devoted to the study of judicial or legal ethics or professionalism, and shall include discussion of applicable judicial conduct codes, rules of professional conduct, or statements of professionalism. (b) Child and elder abuse reporting programs must be devoted to the lawyer’s statutory duty to report child abuse and elder abuse (see ORS 9.114). (c) In order to be accredited as a mental health and substance use education credit under Rule 3.2 (d), and activity shall educate attorneys about causes, detection, response, treatment, or problem prevention related to mental health or substance use. (d) In order to be accredited as an activity pertaining to access to justice for purposes of Rule 3.2(e), an activity shall be directly related to the practice of law and designed to educate attorneys to identify and eliminate from the legal profession, from the provision of legal services, and from the practice of law barriers to access to justice arising from biases against persons because of age, culture, disability, ethnicity, gender and gender identity or expression, geographic location, national origin, race, religion, sex, sexual orientation, veteran status, immigration status, and socioeconomic status. (e) Portions of activities may be accredited for purposes of satisfying the ethics and access to justice requirements of Rule 3.2, if the applicable content of the activity is clearly defined. “(Emphasis added
West Virginia – Mandatory / Integrated bar
This is the West Virginia MCLE requirement: “6.02 Minimum continuing legal education requirements; required reporting; carry-over credits (a) Obligation. As a condition of maintaining a license to practice law in the State of West Virginia, every active member shall satisfy the minimum continuing legal education and reporting requirements in this Rule. (b) MCLE requirements. Each active member shall complete a minimum of twenty-four hours of continuing legal education, as approved by this Rule or accredited by the Commission, every two fiscal years. At least three of such twenty-four hours shall be taken in courses on legal ethics, office management, attorney well-being, or elimination of bias in the legal profession.
States are adding bias training to their MCLE requirements and this trend is getting stronger. Of note, many states also allow CLE in the field of mental health and substance abuse to count toward ethics or a similar categorical requirement: (FL, IL, MO, NV, NC, OH, SC, and WV ). This speaks to the potential to carve out or specify particular subject matter as MCLE-required or acknowledged as related to ethics, and this is also something any State Bar’s MCLE Committee could look at for consideration. Better understanding biases can help attorneys and the mediator better understand disputes. This, in turn, can help attorneys and the mediator bring about dispute resolution. A mediator should be trained in the topic of bias.