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Carol A. Sigmond
Michael J. McNamara
Stephen C. Lessard
Megan P. Davis
Vincent T. Chang
Lewis F. Tesser
Date: February 14, 2017
TO: New York State Unified Court System
FROM: New York County Lawyers Association
RE: Proposed CLE Requirement for Diversity, Inclusion and Elimination of Bias
The New York County Lawyers Association (“NYCLA”) has been asked to provide comments regarding the recent proposal by the New York State Unified Court System (“UCS”) to impose a requirement that attorneys admitted to the New York State Bar take at least one credit hour of CLE addressing the subject of diversity, inclusion and elimination of bias (“D&I CLE”) during each biennial reporting cycle (the “UCS Proposal”). The UCS Proposal follows a similar proposal by the CLE Committee of the New York State Bar Association (“NYSBA”), subsequently approved by NYSBA’s Executive Committee and House of Delegates (the “NYSBA Proposal”). The following comments are based on a report of the NYCLA Committee on Professionalism and Professional Discipline that was substantively approved by the NYCLA Board of Directors on January 9, 2017.
NYCLA has a long history of promoting diversity and inclusion in the legal profession; it was the first major bar association in the country to admit members without regard to race, ethnicity, religion or gender. The NYCLA Board of Directors considers both the NYSBA Proposal and UCS Proposal to be excellent but recommends that the UCS Proposal be adopted with the provision that it include the definition of “diversity and inclusion” contained in the NYSBA Proposal.
The concept of D&I CLE is consistent with one of NYCLA’s important missions: to foster professionalism among members of the New York Bar. Put another way, we seek to foster a sense among lawyers that we are a single, unified profession, mindful of our important role in society as well as our need to service our specific clients. In its landmark 1986 report, “ . . . In the Spirit of Public Service:’ A Blueprint for the Rekindling of Lawyer Professionalism,” the ABA Commission on Professionalism [at 10] adopted the definition of “profession” espoused by Dean Roscoe Pound:
The term refers to a group . . . pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose. (Emphasis added.)
For us, the idea that we, as lawyers, are engaged in a “common calling” means that all members of the profession must have an equal opportunity to succeed, and to do so in whatever milieu they choose to practice: in private law firms, government agencies or public defender offices; in large law firms or small; and as litigators, transactional lawyers, trust & estates attorney or any other field.
Recent reports, as well as our own anecdotal experience, tell us that the goal of equal opportunity and treatment within our profession remains elusive. A group of affinity bar associations, in a letter to Hon. Janet DiFiore dated July 21, 2016, described this as a “pervasive, but often unspoken problem within our profession.” Statistics back this up. Professor Deborah Rhode reports that “women constitute more than a third of the profession, but only about one-fifth of all law firm partners, general counsels of Fortune 500 companies and law school deans,” and that “blacks, Latinos, Asian Americans and Native Americans, while making up a fifth of law school graduates, make up fewer than 7% of law firm partners and 9% of general counsels of large corporations.” Rhode, Deborah L., Law is the Least Diverse Profession in the Nation. And Lawyers Aren’t Doing Enough to Change That,” Washington Post, May 27, 2015. The New York City Bar Association’s Diversity Benchmarking Report for 2014 showed that law firms continue to experience higher rates of attrition among women and minority attorneys: 23.6% of minority attorneys and 21.3% of women of all levels of seniority left a sample of large firms in 2014, compared to 14.7% of white men. See J. Kiernan Letter to Hon. Betty Weinberg Ellerin dated August 25, 2016 at 3. Numerous studies back up these figures, not just with women and minority lawyers, but also with respect to the LGBT community. Id. at 2 n.2 (citing articles and studies).
But even if one is not content to rely on the numbers, the day-to-day experiences of those who practice in this City tell us that women, minority, disabled and LGBT lawyers are falling behind. White, straight males predominate among law firm partners and on the executive committees that manage their firms, no matter what the firms’ size. Women lawyers are often asked to get coffee, to manage firm parties and get-togethers, to take notes at meetings and court conferences. Women and minority lawyers rarely argue in court, especially in our Commercial Divisions. All these categories of lawyers are often passed over for promotions and for the best assignments. They often struggle to find adequate mentors, as well as adequate maternity and paternity leave policies, adequate child care opportunities and adequate accommodations for the disabled.
The list goes on. While D&I CLE is no panacea, and may strike some as a nod to “political correctness,” NYCLA believes it can serve only to help the legal profession fulfill its mission, both symbolically and on a day-to-day basis, of making available “justice for all.” It can sensitize the profession to the pervasiveness of this problem, and to the many ways – large and small – that lawyers contribute to it. It can foster a recognition of the importance of an inclusive profession to the administration of justice. It can help continue the effort to eliminate implicit bias and discrimination, both in interactions among lawyers and in communications between lawyers and clients. And it can help make the profession more vital by calling on, and allowing the full development of, the talents of all lawyers, no matter their gender, ethnic background, disability status or sexual orientation.
In considering the NYSBA and UCS Proposals on D&I CLE, we note that there are subtle but important differences. The NYSBA Proposal broadly defines “diversity and inclusion” to include “all persons regardless of race, ethnicity, national origin, gender, sexual orientation, gender identity, religion, age or disability,” while the UCS Proposal has yet to adopt a definition. Under the NYSBA Proposal, either one or two hours for each reporting period will be required, while only one hour is required under the UCS Proposal. Under the NYSBA Proposal, the one or two hours for D&I CLE may be deducted from the mandatory four hour ethics and professionalism component, while the UCS Proposal would not allow such a deduction.
Because NYCLA believes that it is important to continue to require New York attorneys to have four full hours of ethics and professionalism credits in each reporting period, while also making D&I CLE mandatory, we recommend adoption of the UCS Proposal, on the assumption that the UCS Proposal define “diversity and inclusion” as broadly as the NYSBA Proposal does. We also feel that one hour of D&I CLE in each reporting period should be adequate to accomplish the goals of D&I CLE, and will feel less onerous, and thus more welcomed, by the Bar as a whole.
We therefore support adoption of the UCS Proposal to impose a requirement for D&I CLE with amendment to include the definition of “diversity and inclusion” contained in the NYSBA proposal.
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