February 2018Volume 28Number 1PDF icon PDF version (for best printing)

Illinois among minority of states requiring CLE on mental health and diversity issues: Q & A on recent amendments to Ill. S. Ct. R. 794(d)

In spring 2017, the Illinois Supreme Court announced new additions to the continuing legal education (CLE) in Illinois requirements for Illinois attorneys. These rules went into effect on July 1, 2017. One of our own REM Committee members has been involved in the effort to make Illinois a leader in diversity and inclusion issues – and has volunteered to answer a few questions for Illinois lawyers.

1. Please tell us a bit about how this amendment to Rule 794(d) came to fruition and describe your involvement in this effort.

Having served on the Illinois Supreme Court Commission on Professionalism since its inception in 2005 to 2016 and on its precursor, Special Supreme Court Committee on Civility from 2001 through 2005, I was honored to present a report and recommendation that one hour of the 6 hours required in professional responsibility requirement be devoted to the area of diversity and inclusion at my last Commission meeting in December 2016.

The impetus behind the requirement that one hour of the professionalism CLE hours be devoted to diversity and inclusion topic is the harsh reality that our profession is not faring well in increasing our diversity. The 2016 Diversity Report by the National Association of Legal Professionals presents the stark national statistics: minorities constitute 22.72 percent of associates in large law firms, but only 8.05 percent of partners; minorities represent only 14.62 percent of all American attorneys; only 2.76 percent of partners are minority women; although women account for 45 percent of associates at law firms, they only account for 22.13 percent of law firm partners.1 Illinois doesn’t fare any better than the national figures. The 2016 Chicago Lawyer Annual Diversity Survey of the 88 Illinois law firms that responded to the survey indicates that women accounted for around 44 percent of all lawyers, but only 22.4 percent of all partners.2 According to NALP, which surveyed Chicago specifically, of the 6,747 attorneys in law firms, 32.56 percent were women, 12.42 percent were minorities, and 6.05 percent were minority women.3

The lack of diversity in the legal professionalism is very apparent, yet data collected and maintained by the Illinois Supreme Commission on Professionalism since 2010 indicates that courses offered in the area diversity remains at a relatively low and static level. The Commission on Professionalism determined that teaching attorneys about the need for greater diversity in the legal profession, equipping attorneys with skills to increase diversity in their workplaces, challenging attorneys to counter biases in their professional circles, and encouraging attorneys to fully engage with an increasingly diverse client population, will ensure that attorneys maintain high standards of professional competence.

2. The Amended Rule states, “Each attorney subject to these Rules shall complete a minimum of six of the total CLE hours for each two-year reporting period in the area of professionalism, civility, legal ethics, diversity and inclusion, or mental health and substance abuse.”

For Illinois lawyers, can you shed any light on what “diversity and inclusion” means? Does this new CLE category refer to training on diversity issues, inclusion issues, sensitivity training, or all of the above? Is there a single definition?

The following is the guide provided by the Commission on Professionalism on its website at https://www.2civility.org/programs/cle/professional-responsibility-cle-guidelines/.

Diversity and inclusion CLE should focus on challenges faced by groups under-represented in the legal profession.

Courses should focus on eliminating bias, increasing representation, reducing harassment, and barriers to hiring, retention, promotion, professional development and full participation of underrepresented groups in the legal profession.

Courses should have practical advice to participants that they can utilize and employ when improving diversity and inclusion in their professional circles. If a panel is utilized, the panelists should have personal and/or professional experience with diversity and inclusion and offer unique insight into the challenges facing the legal profession and the justice system. Valid and measurable research should be utilized where possible.

Courses should include interactive activities to allow participants to engage with each other while learning diverse perspectives and challenging their own biases.

Programs about substantive law as it relates to representing clients from under-represented groups will not qualify for professional responsibility CLE credit. For example, courses focused on immigration laws, the tax code and divorce law would not qualify for professional responsibility credit. Programs addressing communication skills necessary for effective representation of diverse clients could qualify under the “professionalism” topic area.

Examples of diversity and inclusion courses include:

• Challenging Implicit Biases

• Advancing Women In The Profession

• Restructuring Organization Policies To Encourage Retention

• Mentoring Relationships Between Majority And Minority Attorneys

• Client-Initiated Efforts To Increase Diversity Of Lawyers

3. What about the new category of “mental health and substance abuse”? Is this requirement directed towards lawyers who may find themselves facing mental health or substance abuse issues, or is it directed towards everyone who may encounter these issues while representing clients or otherwise practicing law?

Providers should utilize mental health and substance abuse CLE programming to explore ways to increase the health and well-being of the bar.

Course providers should mention the role of Lawyers’ Assistance Programs and provide contact information for the state’s LAP entity or similar organization.

Examples of topics for a mental health and substance abuse course include:

• Balancing Personal And Professional Priorities

• Maintaining Emotional And Mental Health

• Stress Management

• Suicide Prevention

• Recognizing Signs And Symptoms Of Mental Health And Substance Abuse

• Strategies For Dealing With Mental Health And Substance Abuse

• The Relationship Between Mental Health And Substance Abuse And Disciplinary Actions

• The Effects Of Lawyer Impairment On Our Profession

• Destigmatizing Mental Health And Substance Abuse

4. Who will be approved for presenting programs in these two areas? Due to the broad scope of these subject areas possibly beyond the field of law, might we see non-lawyer experts approved for CLE programming?

The Illinois Supreme Court Commission on Professionalism will still continue to approve the programs for professional responsibility and like all CLE courses, a diversity and inclusion course or a mental health and substance abuse course must directly relate to issues in the legal profession and in the practice of law. Credit will not be given to courses that are not specifically oriented toward attorneys.

5. How will CLE programs and their presenters be certified to meet these requirements – as addressing “diversity & inclusion” or “mental health and substance abuse”?

The Commissioners of the Illinois Supreme Court Commission on Professionalism consists of law school faculty, judges, lawyers, and non-lawyers appointed to volunteer service by the Illinois Supreme Court. With the leadership team lead by Executive Director Jayne Reardon, the Commission on Professionalism oversee and approve programs that meet the standards for addressing diversity and inclusion or mental health and substance abuse courses as well as the other professional responsibility courses.

6. The Amended Rule also provides that this requirement applies “beginning with the two-year reporting period ending June 30, 2019.” The language is a little awkward, but does it mean that for those whose reporting year started on July 1, 2017, this amendment applies? Does it apply as well for those whose reporting period started on July 1, 2016?

Yes, the amendment applies to those whose reporting year started on July 1, 2017. It does not apply to those whose reporting period started on July 1, 2016. The Amended Rule became in effect on July 1, 2017, and in order to ensure that all attorneys have a fair full 2-year opportunity to complete their one carve-out hour for diversity & inclusion course and one carve-out hour for mental health and substance abuse course, the Amended Rule applied with the first group of attorneys that started their 2-year window of taking CLE courses instead of applying to a group of attorneys who would have been in the middle of their 2-year CLE window such as the group whose reporting period would have started on July 1, 2016.

7. The Amended Rule also states that the requirements may be met by either six CLE hours or by “completing the Rule 795(d)(11) year-long Lawyer-to-Lawyer Mentoring Program.” Does this mean that some Illinois lawyers will never be required to get any continuing training that focuses specifically on these issues?

Part of the six CLE Lawyer-to-Lawyer mentoring program which a year-long program encompasses discussing topics of diversity & inclusion and mental health and substance abuse issues, so the Illinois lawyers participating in these mentoring programs would be addressing these specific topics.

8. I understand that Illinois is one of a very short list of states to impose a requirement that a minimum number of CLE credits address diversity and inclusion, or mental health and substance abuse. What are the other states? Why has Illinois been an early adopter?

The Supreme Court Commission on Professionalism has determined that mandating diversity and mental health and substance abuse CLE will demonstrate that Illinois is forward-thinking about professional responsibility CLE as encouraging a higher level of professionalism. Only three states – California, Minnesota and Oregon – require attorneys to take diversity and inclusion CLE. Illinois became the fourth.

The following is an excerpt from the Commission on Professionalism’s Chair, Honorable Debra Walker, in which outlines to the Illinois Supreme Court the reasons why the Illinois Supreme Court Commission on Professionalism unanimously recommends that the Illinois Supreme Court revise Rule 794(d)(1) to allow for mandatory diversity and mental health and substance abuse CLE in Illinois. https://www.2civility.org/wp-content/uploads/Recommendation-Letter-to-Court-CLE-Requirement.pdf.

In February 2016, the ABA House of Delegates unanimously passed Resolution 107, encouraging states to require lawyers to participate in diversity and inclusion training as a standalone component of their CLE requirements.

As for mental health and substance abuse, the ABA-Hazelden Study has led to an outpouring of pro-active efforts across the nation. The study has been incorporated into many professionalism programs. The ABA Commission on Lawyer Assistance Programs Task Force on Lawyer Wellness is a joint effort between the Commission, the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers, and others, to address the findings of the ABA-Hazelden study. Commission Executive Director Jayne Reardon is a member of the Task Force. The Task Force is currently drafting a report directed to state regulators on ways to improve lawyer wellness among their attorneys.

Finally, and of particular relevance to this recommendation, is the ABA MCLE Model Rule Project. In August 2014, the ABA Standing Committee on Continuing Legal Education started the MCLE Model Rule Review Project, focused on updating the MCLE Model Rule. The current Model Rule for MCLE was passed in 1988. Both MCLE Board Director, Karen Litscher Johnson, and Commission on Professionalism Diversity and Education Director, Michelle Silverthorn, participated in the Project. On February 6, 2017, the ABA House of Delegates adopted the revised Model Rule.

Section 3 of the 2017 MCLE Model Rule states:

As part of the required Credit Hours referenced in Section 3(A)(1), lawyers must earn Credit Hours in each of the following areas:

(a) Ethics and Professionalism Programming (an average of at least one Credit Hour per year);

(b) Mental Health and Substance Use Disorders Programming (at least one Credit Hour every three years); and

(c) Diversity and Inclusion Programming (at least one Credit Hour every three years).

9. It’s a great thing to be in the vanguard among the states on issues that so clearly affect both the practice of law and the distribution of and access to justice. Who do we have to thank for this change?

The Commissioners who were at the December 2016 meeting and unanimously voted to recommend approval the amendment, Executive Director Jayne Reardon and her dedicated team, Chair Judge Debra Walker, and the Illinois Supreme Court that officially approved the amendment. I was fortunate enough to be the Commissioner who made the report to the Commission on Professionalism advocating what has been my goal in which someday, our legal profession would reflect and include the diversity of the communities that we serve.

1. http://www.nalp.org/uploads/2016NALPReportonDiversityinUSLawFirms.pdf.

2. http://www.chicagolawyermagazine.com/Archives/2016/05/women-equity-partners-May16.aspx

3. http://www.nalp.org/uploads/2016NALPReportonDiversityinUSLawFirms.pdf.

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