PHILADELPHIA BAR ASSOCIATION RESOLUTION SUPPORTING ADOPTION BY THE PENNSYLVANIA SUPREME COURT OF A REQUIREMENT FOR BIAS ELIMINATION CLE CREDIT

WHEREAS, diversity and inclusion are core values of the Philadelphia Bar Association; and

WHEREAS, reflecting its steadfast commitment to the achievement of diversity and inclusion, the Philadelphia Bar Association has developed a Diversity and Inclusion Action Plan setting forth goals, metrics and reporting mechanisms to ensure that the Association fulfills its commitment to advancing diversity and inclusion in the legal profession; and

WHEREAS, the American Bar Association (ABA) has also spearheaded efforts to promote diversity and fairness, including the 2008 reformulation of its objectives into four major "Goals" that were adopted by the House of Delegates. Goal III, entitled "Eliminate Bias and Enhance Diversity," includes the following two objectives: "1. Promote full and equal participation in the association, our profession, and the justice system by all persons. 2. Eliminate bias in the legal profession and the justice system."; and

WHEREAS, the Philadelphia Bar Association has expressed its support for the diversity mission stated in Goal III of the ABA and its inclusion in this Association's Statement of Diversity and Inclusion Principles; and

WHEREAS, in conformity with the aforementioned policies of the Philadelphia Bar Association, on October 26, 2016, the Board of Governors unanimously passed a Resolution adopting ABA Model Rule 8.4g, making it "professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." A similar recommendation, promulgating a slightly modified version of the Model Rule, was subsequently passed by the Pennsylvania Bar Association House of Delegates on November 18, 2016; and

WHEREAS, the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness (Commission) was created in 2005 by the Pennsylvania Supreme Court in response to a study focusing on racial and gender bias within the justice system in Pennsylvania. The Commission's stated purpose is to address inequities and secure fairness and equal justice in Pennsylvania's court system; and

WHEREAS, Achieving Fairness through Bias-Free Behavior: A Pocket Guide for the Pennsylvania Courts, a 2009 Commission publication, provides simple behavioral guidelines for all participants in the justice system as a means of encouraging fair treatment for all, and recommends that all court staff be required to participate in bias elimination training and that training programs should be available to all aspects of the justice system; and

WHEREAS, a mandatory Bias Elimination Diversity and Inclusion MCLE would effectuate this stated goal of a committee of the Supreme Court; and

WHEREAS, requiring Bias Elimination, Diversity and Inclusion MCLE would be consistent with the Policy on Non-Discrimination and Equal Employment Opportunity of the Pennsylvania Supreme Court, which reads: "The Supreme Court of Pennsylvania declares that it is the policy of the Unified Judicial System of Pennsylvania (UJS) to ensure that all individuals having business with the UJS are treated in a dignified, civil, respectful, and nondiscriminatory manner. This policy prohibits all forms of discrimination and harassment in a Court Facility…"; and

WHEREAS, California and Minnesota have already adopted stand-alone Diversity and Inclusion MCLE requirements, with California requiring one hour of "Recognition and Elimination of Bias in the Legal Profession and Society" as a component of its three-year MCLE requirements, and Minnesota requiring two hours related to "Elimination of Bias" as a component of its three-year MCLE requirements.

WHEREAS, Hawaii, Kansas, Illinois, Maine, Nebraska, Oregon, Washington, and West Virginia allow programs on elimination of bias to qualify for ethics and/or professionalism credits, but do not create separate Diversity and Inclusion CLE requirements; and

WHEREAS, an ABA Commission considered the merits of both approaches and concluded that the California and Minnesota models best advance the goal of diversity and inclusion by ensuring all attorneys actually receive Diversity and Inclusion CLE; and

WHEREAS, in September 2016, the Allegheny County Bar Association passed a resolution calling for the modification of Pennsylvania MCLE rules to include as a separate credit MCLE programs that address diversity and inclusion and the elimination of bias in the legal profession with respect to all persons regardless of race, ethnicity, gender, sexual orientation, gender identity, or disabilities; and require a minimum of one hour for this separate credit without increasing the total number of required annual MCLE hours and without changing the criteria for MCLE credit; and

WHEREAS, Members of the Philadelphia Bar Association practice in areas of law governed by statutes and regulations that address discrimination in society; and

WHEREAS, requirements for Bias Elimination, Diversity and Inclusion MCLE including cultural competence, meaning the ability to interact effectively with people from different cultural/ethnic/gender and socio-economic backgrounds, are consistent with the requirement of continued education on substantive law, practice and procedure; and

WHEREAS, requirements for Bias Elimination, Diversity and Inclusion and cultural competence MCLE are consistent with the Philadelphia Bar Association and the Pennsylvania Supreme Court's long standing commitment to advancing diversity and inclusion and cultural sensitivity within the profession and to eliminating bias and harassment that may exist.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the Supreme Court of Pennsylvania to modify the Pennsylvania mandatory continuing legal education (MCLE) rules to:

  1. Include as a separate credit MCLE programs that address diversity and inclusion cultural competence and the elimination of bias in the legal profession and society with respect to all persons regardless of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status; and

  2. Require a minimum of one hour for this separate credit without increasing the total number of required annual MCLE hours and without changing the criteria for MCLE credit, provided that this credit may qualify for substantive or ethics credit; and

  3. Adopt the following changes or similar language to the Rules and Regulations for CLE in Pennsylvania promulgated by the Supreme Court of Pennsylvania Continuing Legal Education Board in accordance with the above:

    Amend Rule 105(a)(2) by adding, "(v) recognition and elimination of bias and/or discrimination in the legal profession and society by reason of, but not limited to, race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.

    Amend Regulation Section 3 by adding a new subsection (e) that states: "(e) Commencing January 30, 2018, the CLE requirement shall be a minimum of two (2) hours of ethics, professionalism, substance abuse and a minimum of ten (10) hours of substantive law, practice and procedure with at least one (1) of the total 12 (twelve) hours devoted to recognition and elimination of bias and/or discrimination in the legal profession and/or society and shall be first applicable to the compliance groups as follows:

    Group I April 30, 2018
    Group II August 31, 2018
    Group III December 31, 2018"

    Amend Regulation Section 3 by re-lettering current subsection (e) as subsection (f) and amending it to state: "CLE credits for ethics, professionalism, or substance abuse may be applied to any substantive law, practice and procedure requirement. CLE credits devoted to recognition and elimination of bias and/or discrimination in the legal profession and/or society may be applied to any ethics and professionalism requirement or substantive law, practice and procedure requirement."

  4. CLE that would meet this requirement would include any substantive or ethics course that contains at least one hour addressing issues related to bias and discrimination in the legal profession or society at large as those terms are used in statutes, regulations, rules of court, disciplinary rules and court operating procedures. As with courses that incorporate an ethics credit throughout the entirety of the course and contain a notice in the course description, courses that meet the elimination of bias/discrimination CLE requirement could include one of the following notices depending on the content and setup of the course:

    This course satisfies the elimination of bias/discrimination CLE requirement. [For use with any course where the content meets the requirement as long as at least one hour of the course is attended.]

    This course satisfies the elimination of bias/discrimination CLE requirement if you attend the entire course. [For use with any course where the content meets the requirement only if the entire course is attended.]

AND BE IT FURTHER RESOLVED that the Chancellor and/or the Chancellor's designee(s) shall communicate its position to the Supreme Court of Pennsylvania, the legal profession and the public and take such other action as may be necessary to effectuate this Resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: March 30, 2017