UPDATE: Proposed Ethics CLE Requirements Headed to Supreme Court

Temple of Justice

Updated Dec. 13, 2019:

On Dec. 11, Washington Supreme Court Chief Justice Mary E. Fairhurst notified the MCLE Board chair that the Court had reviewed the suggested amendments to APR 11 at its Dec. 4 En Banc Administrative Conference and voted to decline the proposed rule change.

Updated Oct. 16, 2019:

The Washington Supreme Court Mandatory Continuing Legal Education (MCLE) Board voted unanimously on Oct. 4 to forward its recommended amendments to Admissions and Practice Rule (APR) 11 to the Washington Supreme Court.

In a 5-0 vote (one board member was absent, and there is one vacant position on the seven-member board), the MCLE Board will recommend to the MCLE Board’s suggested APR amendment that WSBA members complete at least three credits, one credit each, of their six required ethics credits in the topics of equity, inclusion and the mitigation of bias; mental health and addiction; and technology education focusing on digital security. The MCLE Board submitted its recommendations to the Court by the Oct. 15 deadline. If adopted as suggested, the new CLE requirements will go into implementation for members in the 2022-2024 reporting period (WSBA members report their CLE credits once every three years).

On Sept. 27 a member of the MCLE Board presented those suggested amendments to the WSBA Board of Governors. The Board of Governors voted 7-5 on an alternative course of action in lieu of endorsing the recommendations.

Reiterating its full support for efforts for members to be knowledgeable and accountable in the proposed MCLE topics, the Board of Governors cited several concerns: the significant portion of members who disfavor a prescribed menu of ethics topics, the inability of some members to access high-quality CLEs in these topics, the fear that this could open the door for more CLE requirements in the future, and doubt about the actual effectiveness of forced ethics education, given the pushback. Therefore, instead of supporting the proposal, a majority voted to commit WSBA to annually producing and providing members three credit hours of free CLE offerings—both live and on-demand—covering each of the three ethics topics, without making the credits mandatory.

“We believe our solution is the stronger alternative and a true win-win for the public, our members, and the integrity of the legal profession,” said WSBA President Rajeev Majumdar.

District 2 Governor Carla Higginson questioned whether the proposed amendments met the requirements of APR 11, specifically in enhancing service to clients and protecting the public. “I suggest to you that it does not,” Higginson said, adding she felt it was important to consider comments from members who were in opposition to the recommendations.

Not all governors held the same view and several sided with the MCLE Board and supporters of the recommended amendment who have said the change to require these CLE topics is long overdue, will enhance the practice of law, and benefit members of the public in a state that is increasingly diverse and given the known potential for unconscious bias to disproportionately affect people from marginalized groups.

“I don’t think we should turn a blind eye to what we see and know is happening around us,” District 7-S Governor Jean Kang said.

“Do our actions measure up to our values?” Governor At-Large Alec Stephens said. “Bias should have no place in the system of justice, and it’s something we all have to work on.”

After meeting with the WSBA Board of Governors and hearing their concerns, the MCLE Board considered alternative recommendations to propose to the Court, such as recommending the Court adopt only some of the recommended CLE requirements rather than all three. However, the MCLE Board decided to continue with the recommendations as proposed, developed after more than a year of research and discussion, and to let the Court decide its preferred course of action. In the meantime, MCLE Board members said they would work to better emphasize that the recommendations were well thought out to achieve maximum efficacy, but with minimal burden to WSBA members; that such a change will benefit the practice of law; and it will have a direct and much-needed positive impact on the public.

“I am shocked with how polarizing our proposal has been and that people see it as political,” MCLE Board Member Asia Wright said at the MCLE Board’s Oct. 4 meeting, adding that the board and stakeholders could now work to better communicate to both WSBA members and the public about the recommendations, why they were crafted in such a way, and the intent behind them. “This is our shot, I feel like.”

Once sent to the Court, the recommended APR 11 amendment is expected to be published for public comment from January-April 2020.

Original Blog Posted Sept. 19, 2019:

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.