Conversation on Proposed Equity, Diversity, and Inclusion CLE Requirement**
The Colorado Supreme Court is in the process of considering a modification to the attorney continuing legal education (“CLE”) requirement for all Colorado actively licensed attorneys. On April 6, 2021, the Court will hold a hearing to consider comments on the proposed change. The change proposes adding a requirement that attorneys receive at least two hours of equity, diversity, or inclusion training as a part of the 45 credits attorneys are required to obtain every three years. A link to the main page from which you can review the proposed change appears here: https://www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm (once going to the page, you have to select one of the proposed rules or regulations to review all of the proposed changes).
Jessica Brown, in her Colorado Bar Association’s president’s message outlined the proposal through attorneys Christine Hernández and Annie Martínez and set forth the support for such training in the December 2020 issue of the Colorado Lawyer. In an effort to learn different points of view on the requirement, I spoke to two attorneys representing opposing and supporting views of the requirement. Newman McAllister and Jon Olafson were asked the same questions and the essence of their responses appears below.
Newman McAllister primarily practices in the Fourth Judicial District (El Paso and Teller Counties) and has been licensed as an attorney for over 45 years. Mr. McAllister wrote a letter to the Colorado Lawyer which appears in the February 2021 issue. A response from members of the Diversity Council appears along with Mr. McAllister’s letter.
Jon Olafson practices in the Denver area and is a partner with Lewis Brisbois. He has been an attorney for more than 20 years. Mr. Olafson’s involvement with the Diversity Council and the REDI (Racial Justice, Equity, Diversity and Inclusion) effort is covered in the January 2021 issue of the Colorado Lawyer.
Have you had the opportunity to read in detail the proposed CLE requirement change?
Mr. McAllister: Yes.
Mr. Olafson: I have. As a member of the CBA Executive Council, I (and the whole EC) supported this well-researched proposal when it was first brought forth by the President’s Diversity Council. The President’s Diversity Council, of which CBA is a member, is comprised of the Asian Pacific American Bar Association, Colorado Hispanic Bar Association, Colorado Women’s Bar Association, Colorado Lesbian, Gay, Bisexual, Transgender Bar Association, Sam Cary Bar Association, the South Asian Bar Association, and the Denver Bar Association, all of whom have been tremendous leaders in this space and I am so grateful for their very detailed and thoughtful work.
How do you believe the proposed change is or is not related to competence or professionalism in the legal profession?
Mr. McAllister: The proposal is probably the poorest two to three paragraphs I have read in terms of lacking clarity in the goal to be achieved. There should be a definition section. As written, the proposal assumes that everyone knows what terms such as race, ethnicity and culture mean, at least in the context of the proposal. The goal of the requirement is not defined. For example, is the goal to increase recognition of explicit and implicit bias? What does “veteran status” mean? Are veterans subject to any kind of bias. To the extent they are, I am not aware.
More clarity would help an attorney be able to determine the value of such training to the attorney in his or her practice, including for attorneys with more experience. I don’t know what is expected of me as a solo practitioner. I don’t screen clients’ views for these issues. If a solo practitioner is being asked to eliminate bias or barriers, that is a tall order for anyone to tackle. I’m not sure what I’m supposed to do with the information that would be learned. Such a requirement might be more relevant for a large organization or a firm with a larger client base or organizations which might avoid certain populations of clients. I do not engage in such a practice.
Mr. Olafson: As attorneys, we work with, represent, and are diverse people. Indeed, our professional Oath of Admission states that “I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty.” I believe the proposed EDI CLE’s goes to the core of this principle and helps us all be better prepared to work and engage with the diversity we find within our Bar.
Outside of CLE trainings, do you have experience being required to take subject-specific training (work or non-work connected)? If so, please describe it, how would you characterize the experience and does that experience relate to your view of the current proposal?
Mr. McAllister: No, I’ve been a solo practitioner for 45 years and have had no employees for the past 25 years.
Mr. Olafson: I have voluntarily taken different trainings and gone through personal development exercises related to EDI, racial justice, and implicit bias. In each, I have not only learned more about myself, but different perspectives and the unique ways people view the same thing. I know that this has helped shape the way I interact with people on a personal and professional level. I look forward to the new EDI CLE’s because I feel they are another opportunity to improve and be a better coworker, advocate, and community member.
Have you received implicit bias training in the past? If so, how would you characterize the experience or what you learned?
Mr. McAllister: No.
Mr. Olafson: Yes. In fact, when I was the co-chair of the Labor and Employment Section from 2017-18, we included an implicit bias track in one of our programs. It was not only well-attended, but well-received. One participant approached me after the session and said he was skeptical about the topic but wanted to check it out. After the training, he indicated that he learned not only more about himself but had practical tips to use in his practice and in his interactions with his friends and family. I think there may be some resistance to implicit bias training because of the natural tendency to be defensive about our thoughts and actions. I have found, however, that if you approach implicit bias training with genuine curiosity and a desire for improvement, you will find yourself pleasantly surprised. I am hopeful that professionals throughout Colorado will keep an open mind and heart about this type of training and use it for continual self-improvement.
What information informs your opinion or view of the proposed change, to the extent not already expressed above?
Mr. McAllister: My experience as a lawyer is that none of my relationships with my clients, other attorneys or judges have been influenced by these issues. The proposed change is presented as if a private attorney has a duty to take the initiative to change diversity, equity, and inclusion impacts. The writers of the proposed change may want to set out areas where they are looking to impact these areas, for example lawyer to lawyer, lawyer to client, lawyer to employee, or lawyer to judicial system.
Referring to the proposed change, in the sentence concerning marginalized groups that are “underrepresented,” I assume that means underrepresented in the bar and bench though it is not defined. I further assume this is a statistics or percentage measurement based upon the general population. For example, under the numerous groupings thereafter we have “religion.” I am not sure what is meant, why we should care about a lawyer’s religion or how we even know the religions of lawyers. But assume for argument that 1% of the US population is Muslim and only one tenth of one percent are lawyers and judges. It appears the focus of the proposal is that this imbalance results from “…ingrained and systemic structural biases in society,…” That is one possible explanation but there are many more: education, achievement, desire, perseverance.
I continue to oppose the proposal based upon what I stated in my letter in the Colorado Lawyer: it is not related to ethics or professionalism; it is controversial, ineffective, and divisive.
Mr. Olafson: Besides studying the states that have already approved similar provisions, such as Minnesota, I also draw on my 20 years of experience in the legal field. As an openly gay male attorney, I know the sting of implicit bias and explicit discrimination and homophobia. There is simply no place for that in our professional dealings and in our profession as a whole. The point of the EDI CLE’s is not to change someone politically, but to highlight new perspectives and provide tools for professionalism and professional engagement. It seems to me we can all always hone that important skill.
Interviewed by Frances R. Johnson, Judge
I express great appreciation to Mr. McAllister and Mr. Olafson for taking time to discuss these important and difficult topics. There hardly ever is only one point of view on a subject, and greater understanding is achieved when we seek out voices from varying perspectives.
** Update
The CLE requirement was modified by the Colorado Supreme Court on April 15, 2021. The change is effective July 1, 2021 to require at least two credit hours in the area of equity, diversity, and inclusivity in every compliance period as part of the professional responsibility education requirement. Rule 250.2, Colorado Rules of Procedure.