Proposed Ethics CLE Requirements Headed to Supreme Court, Board of Governors

Temple of Justice

On Aug. 28, a majority of the Washington Supreme Court Mandatory Continuing Legal Education (MCLE) Board voted to send a recommendation for a suggested amendment to Admission and Practice Rule (APR) 11 to the WSBA Board of Governors. As a Supreme Court board administered by the WSBA, the MCLE Board is tasked with reviewing and suggesting to the Court new mandatory CLE rules or amendments.

On a 5-2 vote—with one of the dissenters noting that he would have voted for one piece of the suggested amendment but didn’t agree with two other provisions—the MCLE Board moved along the proposal that, if approved by the Court, would identify specific topics for mandatory CLE credits that WSBA members would have to complete as three of their six total ethics credits.

The amendment originated from a proposal by the WSBA Diversity Committee and Washington Women Lawyers (with support from eight minority bar associations). A subcommittee of the MCLE Board recommended that Washington follow emerging national trends by amending APR 11 to require in each reporting period, three credits, one credit in each topic:

  1. Equity, inclusion, and anti-bias.
  2. Mental health and addiction.
  3. Technology education focusing on digital security.

In the suggested amendment, these three credits would be required as part of the currently required six ethics credits. The MCLE Board reviewed similar CLE requirements in other states—such as California, Illinois, New York, and Florida—and although no other state adopted all three, the subcommittee recommended doing so in order to best educate legal professionals on new types of ethical questions and to make the change at once rather than in a piecemeal manner.

Hundreds of WSBA members submitted comments in response to the proposed requirements—the largest response to any MCLE decision staff and board members could recall. WSBA members in support of the amendment said, generally, the required education topics are long overdue. Those opposed largely argued it is politically motivated, onerous, unnecessary, and removes members’ discretion in choosing CLEs applicable to their practice areas. Others expressed mixed opinions that, although they were in favor of some of the required CLE topics, they didn’t want all three required credits.

Speaking directly to NWSidebar, two MCLE Board members who sat on the three-person subcommittee said the goal was, in fact, to make things easier for WSBA members—by handling all three CLE subject matters at once and providing education that would help lawyers avoid ethical violations stemming from the various issues.

“Everyone has biases; it is part of being human,” MCLE Board Member Asia Wright said about the equity, inclusion, and anti-bias credit. “Members do not have to change their biases, just be educated about how biases impact the practice of law and the legal system.”

On technological issues, she said the intent is to educate legal professionals about the potential for ethical issues in areas one might not suspect. For example, what is a lawyer’s ethical duty if they are hacked and their client data is held ransom? Similarly, is it ethical to log on to a computer with access to client information on public Wi-Fi at a café?

Another board member who sat on the subcommittee, Ayanna Colman, said the initial member feedback centered around concerns of accessibility, availability, and affordability of the required CLEs. Based on that feedback, the MCLE board discussed that it would be ideal for WSBA to promote easily accessible, low-cost or no-cost CLEs in the required areas; such as the free Legal Lunchbox series. Colman disagreed that the proposal was politically motivated and, instead, characterized it as a reaction to societal trends.

“The data is showing us that our clients are changing—are we changing, too?” she said. “How are we as legal professionals who take an oath to the Court. … How can we make sure that we’re doing that without violating RPCs [Rules of Professional Conduct], without setting ourselves up for malpractice, or without setting ourselves up for any type of wrongdoing if we don’t take just a little bit of time understanding the changing dynamics of our world and our state? … If we as a legal practice are always going to be so behind and reactive, that puts us at a lot of risk.”

The MCLE Board will present the issue to the WSBA Board of Governors for review at the Board’s final meeting of the fiscal year, Sept. 26-27 in Seattle.