Bar Counsel

A New Requirement

MCLE Rule 3.3, and what it means to you

By the time you read this, many of you will have already heard that the Oregon Supreme Court has approved a new MCLE requirement.1 Last year, the court adopted a variety of changes to the MCLE rules and regulations that became effective on Jan. 1, 2001, but they were for the most part technical and procedural changes. The April 2001 amendment to the MCLE rules creates a new category of continuing legal education requirement.

Currently, MCLE Rule 3.3 requires that six of the 45 hours required in a three-year reporting period be on the subject of 'ethics.'2 The new rule adopted by the court expands the ethics requirement to the broader concept of 'professional responsibility,' which encompasses ethics and professionalism, as well as 'the role of lawyers concerning racial and ethnic issues, gender fairness, disability issues and access to justice.' (See the sidebar at right for full text of new rule 3.3.)

The new professional responsibility requirement encompasses nine hours of the required 45. Six of those hours must be in ethics and professionalism activities (including one hour on child-abuse reporting). The remaining three professional responsibility hours must be in activities relating to the other aspects of professional responsibility enumerated above, and referred to, for convenience, as the 'diversity requirement.'

New MCLE Rule 3.3 does not apply to members who report before Dec. 31, 2004 (for the reporting period beginning Jan. 1, 2002). Members whose reporting periods end in 2001, 2002 and 2003 will need to comply only with the current requirement of six hours of ethics or professionalism and 39 hours of general credits.

ORIGINS OF THE NEW REQUIREMENT
The new diversity rule had its origins in the 1994 report of the Supreme Court Task Force on Racial/Ethnic Issues in the Judicial System. The findings of the task force demonstrated that the problems experienced by racial and ethnic minorities in their dealings with the justice system do not stem from overt acts of disrespect or mistreatment. Rather, the task force identified a pervasive institutionalized bias, a residue of beliefs that linger in the subconscious of our society, which perpetuate negative stereotypes and affect people's actions without their knowledge. The task force made 72 recommendations addressed to law schools, the Oregon State Bar, the Oregon Judicial Department, law firms, law enforcement and other government agencies. Recommendation Number 6-5 was addressed to the Oregon State Bar:

As part of the Mandatory [sic] Continuing Legal Education requirement, the Oregon State Bar and Supreme Court should require all lawyers to certify completion of at least three hours of cross-cultural diversity training during each reporting period. The bar should also certify appropriate cross-cultural diversity training programs to meet this requirement.

In response to the task force report, the Oregon Supreme Court appointed a committee to assist in the implementation of the recommendations. The implementation committee's role was to oversee and facilitate the implementation of the recommendations; the responsibility of translating the recommendations into directives or programs rested with the individual entities. The implementation committee issued its progress report in 1996. Regarding the activities of the Oregon State Bar, the report noted that several programs designed to raise lawyers' awareness of cultural diversity issues had been approved for MCLE credit. However, the report also indicated that 'the training [is] not reaching those most in need of cultural awareness education.' In 1995, the implementation committee met with the MCLE Board3 to discuss the task force recommendation for mandatory cross-cultural diversity training. The MCLE Board studied the issue and concluded in March 1995 that mandatory cross-cultural diversity training was not appropriate, but that the MCLE rules would be amended to highlight the importance of cultural awareness training and encouraging attorneys to take at least three credit hours of diversity training in each reporting period. (For reasons that are not clear, that amendment was never made.)

In March 1997, the supreme court established the Oregon Judicial Department Access to Justice for All Committee to continue the implementation process. While recognizing the efforts of a committed few, that committee found that there is much work to be done to increase diversity within the bar and achieve the goal of access to justice for all Oregonians. In the words of Richard Baldwin, chair of the access committee and member of the Board of Governors from 1996-1999, bar members 'must begin to assume personal responsibility for inclusion. If we do not substantially increase awareness of racial prejudice by members of the Bar, we will not be in a position…to effect lasting change.'

In 1999, the Board of Governors' Policy & Governance Committee appointed Richard Baldwin and Angel Lopez4 as a subcommittee on implementation of race and ethnic bias task force recommendations. In April 2000, the subcommittee recommended that MCLE Rule 3.3 be amended to include a cross-cultural diversity requirement. Its proposal was for a six-hour professional responsibility requirement, of which three hours would be devoted to 'traditional' ethics and professionalism and three would be devoted to diversity issues. The BOG subcommittee proposal was reviewed by the OSB Legal Ethics Committee and the MCLE Committee. Although generally supportive of the diversity requirement, both the Legal Ethics Committee and the MCLE Committee urged the Board of Governors against diluting the current six hour ethics requirement. Rather, they proposed, mandatory diversity training should be in addition to, not in place of, even a portion the six hour ethics requirement. The diversity rule proposal was also supported by the OSB Affirmative Action Committee and the Multnomah Bar Association.

At its meeting in September 2000, the BOG approved a modified version of the BOG subcommittee's proposal, which increased the new professional responsibility requirement to nine of the required 45 hours. It also provided, at the suggestion of the Professional Liability Fund, that the 'other aspects of professional responsibility' included personal and practice management skills. The BOG's proposal was reviewed by the supreme court in December 2000, but was not adopted. The supreme court questioned the inclusion of personal and practice management training in a rule designed to address cross-cultural diversity. In January 2001, the BOG approved another version of MCLE Rule 3.3 which eliminated the personal and practice management subjects. The supreme court adopted the rule at its public meeting on March 13, 2001 and issued its formal order on April 12, 2001.

Oregon is not a pioneer in requiring diversity education. California and Minnesota both include 'elimination of bias' credits as part of their MCLE requirement. California requires 1 hour5 in each three-year reporting period, and Minnesota requires 2 hours6 in each three-year reporting period. Washington and several other states define their 'ethics' requirement broadly to include anti-bias and professionalism courses.

At present there are relatively few CLE programs that address cross-cultural diversity issues. Perhaps most well-known is the 'Understanding Racism' course created by former Chief Justice Edwin Peterson. The OSB Diversity Task Force, the OSB Affirmative Action Program, Oregon Women Lawyers and the MBA Equality Committee have also sponsored programs that would qualify for the new diversity credit. We fully anticipate that more programs will be sponsored, and by a wider variety of providers, as the new diversity requirement is publicized. Members who would like to participate in or sponsor such programs are invited to contact the OSB's CLE Programs manager, Maureen Breckenridge, at (503) 620-0222, ext. 366 or (800) 452-8260, ext. 366.

The Board of Governors has made access to justice its highest priority in recent years and the implementation of the diversity requirement is one step toward achieving that goal. Bar members have an important role to play in ensuring that the legal profession reflects the diversity of our community and that the legal system is accessible to all Oregonians.

This new MCLE rule is an opportunity to expand our knowledge, recognize our subconscious beliefs and, as necessary, change our behaviors. In the words of Richard Baldwin, 'The independence of our profession depends on lawyers understanding our professional responsibility to the public and constructively acting on that understanding. The next step will be the development of effective CLE programs to assist lawyers in meeting this modest requirement.' .

ENDNOTES
1. The author recognizes that MCLE issues are not customary topics for the 'Bar Counsel' column, but as the author is also the MCLE Administrator and this is an important topic that will affect all active members, it seemed like an appropriate subject for a column.
2. The requirement is prorated for members with a shorter reporting period on admission or reinstatement.
3. At that time, the MCLE Board was an independent (from the Oregon State Bar) entity appointed by the Supreme Court. In July 1999, the Oregon legislature enacted ORS 9.112, which reposes authority for the establishment of minimum continuing legal education requirements with the OSB Board of Governors, 'subject to review by the Supreme Court.' Effective Jan. 1, 2000, the supreme court issued an order eliminating the MCLE Board and putting administration of the MCLE rules and regulations in the hands of the OSB Board of Governors. The BOG appointed an MCLE Committee to work with the MCLE administrator and serve in an advisory capacity to the BOG on MCLE issues.
4. Lopez is a Region 5 BOG member and president-elect of the Oregon State Bar.
5. Of a total of 25 hours, including 4 in legal ethics and 1 in prevention, detection and treatment of substance abuse and emotional distress.
6 . Of a total of 45 hours, including 3 in legal ethics .

PROFESSIONAL RESPONSIBILITY

(a) At least nine of the 45 credit hour requirement shall be devoted to accredited CLE activities in professional responsibility. Professional responsibility includes legal ethics and professionalism and educational activities pertaining to the role of lawyers concerning racial and ethnic issues, gender fairness, disability issues, and access to justice. Six of the nine credits shall be devoted to legal ethics or professionalism. The other three credits shall pertain to other aspects of professional responsibility referred to above.

(b) Active members who have a reporting period of less than three years shall be required to complete only two credits in ethics and professionalism and one credit in the other aspects of professional responsibility unless required otherwise at the time of admission, reinstatement or resumption of the practice of law.

(c) For reporting periods ending December 31, 2000 and thereafter, one ethics credit hour in each reporting period shall be on the subject of a lawyer's statutory child abuse reporting obligation.

(d) The requirement for credit hours in professional responsibility in addition to legal ethics and professionalism shall be effective for the reporting period that begins on January 1, 2002 and ends on December 31, 2004, and thereafter. Active members whose reporting periods end before December 31, 2004 are required to complete six hours of legal ethics or professionalism credits and 39 general credits. +