Colorado Supreme Court Hears EDI Comments

The Colorado Supreme Court is, for the second time in five years, considering a proposal to require equity, diversity and inclusion training in attorneys’ CLE requirements. The proposed change, developed by many of the diversity bars of Colorado, was discussed before the court in a public hearing on April 6.


Under the proposed rule change, attorneys would need to dedicate seven of their 45 required hours to “professional responsibility” rather than the somewhat narrow category of legal ethics, according to a newsletter from the Office of Attorney Regulation Counsel. The term professional responsibility covers several types of CLE training including legal ethics; legal professionalism; and equity, diversity and inclusivity, commonly known as EDI, according to the newsletter. The rule amendment proposes that, after the current compliance period ends in December 2023, Colorado attorneys would be required to spend at least two of those seven CLE credit hours in EDI, specifically.

The EDI requirement has received official backing from eight major bar associations in the state, including the Colorado and Denver bar associations as well as minority bars such as the Sam Cary, Colorado Hispanic, Asian Pacific and LGBT bar associations, as a way of combating systemic equity issues in the legal and judicial world.

The amendment also includes a proposal for how to define what is required for a CLE program to be accredited in EDI, ethics or professionalism. The regulations also propose to define  law practice management programming to include tech and leadership relating the practice of law.

“Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideal and goals of professionalism,” the amended rule reads, adding that these should include but aren’t limited to recognition and elimination of implicit and explicit bias, diversity and inclusion initiatives within the profession, and equitable access to opportunities and resources by identifying and eliminating barriers that face marginalized groups.

SUPPORT & CONCERN

Justice Monica Márquez reported that the court had received more than 200 written pages of public comment on the rule, and 19 speakers signed up to provide public comment during the hearing. Many of the commenters were representatives of the bar associations that helped develop the rule and submitted a letter earlier this year urging the court to adopt the changes. Some of those who spoke in favor of adopting the amendment included Judge Andrew McCallin, the chair of the CLE and Judicial Education Committee; Nathifa Miller, the committee’s vice chair; Kevin McReynolds, immediate past-president of the DBA; Jessica Brown, president of the CBA; Ruth Moore, Colorado Women’s Bar Association diversity, equity and inclusion committee member; Sara Scott, CEO of the Center of Legal Inclusiveness; Christopher Reeves, immediate past-president of the Colorado Defense Lawyers Association and Rebecca Alexander, an equity member at Sherman & Howard.

McReynolds said he had heard from fellow attorneys about being treated unequally or differently because of their background, and the CLE requirement could offer a chance for education that he said is needed in the legal community. He said he saw much opposition to the rule was from white male attorneys.

“We as lawyers are supposed to be the guardians of equity and justice,” he said. The wide disparity of what the community looks like versus what the legal profession looks like, ultimately, only can have one of two causes: “Either there are structural issues in our profession that need to be recognized, identified and addressed, or this is just how it is because, inherently, somehow only some parts of our society can be lawyers. I cannot accept that [latter] explanation, and this court should not accept any version of that explanation either.”

Similarly, several speakers, including Miller, Scott, Reeves and Alexander, said there is a need for education on implicit and explicit biases to help attorneys in their interactions with one another and the public. Brown said nine states currently require EDI CLEs, including California and New York. Moore spoke of the many instances of unequal treatment she’d heard of from women attorneys. Hernandez said that, in researching the proposed EDI requirements, other states had said that they wished they had started by making the program mandatory.

Reeves said he had been involved with EDI-focused CLE work for some time, “and the reality is those with interest attend, and those without go elsewhere. In the context of equity, diversity and inclusion, the bulk of the legal system skips those CLEs from a perceived lack of importance, an inapplicability to themselves or uncomfortableness of potential topics.” The proposed changes call on those people to come back to the table to hear the discussion even if they don’t want to be active participants, he said. “And that is progress alone in a world where there are increasingly compartmentalized and increasingly biased information sources.”

William Trachman, associate general counsel of the Mountain States Legal Foundation, a nonprofit public interest law firm, said the organization opposed the rule and would evaluate options to challenge it, if approved. He said he thought the rule change was “poorly worded,” which could cause challenges to what meets the content requirements, and said he was concerned about possible viewpoint discrimination and equal protection issues.

Bill Banta, a Colorado attorney with a background in the Civil Rights Movement, wondered if making EDI mandatory was the right path to take.

OARC RESPONDS

Colorado Supreme Court Attorney Regulation Counsel Jessica Yates said her office had received feedback questioning how the OARC would look at the requirements and whether the office views them as part of an ideological agenda that might only approve certain programs.

On approving programs, Yates said the OARC would focus on standards of legal conduct in the legal profession on the recognition, mitigation and elimination of bias, equal access to justice and service of diverse populations. In 2018, the court adopted CLE rule and regulation changes allowing programs about diversity to be accredited for general CLEs. As a result, Yates said, the OARC has two years of experience accrediting CLE programs related to diversity, and there have so far been no complaints that there has been a set of ideological parameters by which they accredit the programs.

“We look to see if it’s CLE in the first place, it must directly relate to legal subjects and the performance of judicial duties or the practice of law, must be directed to lawyers and judges,” she said. “So that’s what we’re looking for, we’re not looking for particular perspective.”

She also noted that there is an appeal process to follow if a provider who submits CLE materials is not awarded credits. Providers usually don’t even go through the full process, she said, noting that some level of education on what constitutes CLE helps.

Regarding concerns that the OARC would disqualify programs not aligning with a particular agenda, “I certainly don’t think that is true for my office,” Yates said, noting that earlier in the pandemic a CLE course focused on how to fight mask mandates through the legal system.

Other jurisdictions, particularly Minnesota and California, saw constitutional challenges to similar EDI CLE requirements, and the courts held that there is no constitutional infringement by simply requiring an attorney to listen to some content relating to the practice of law.

Yates also responded to questions about whether EDI CLEs should be mandatory, she said she shared the same view as other states that had set similar requirements, which concluded it should be mandatory in order to achieve regulatory objectives relating to the profession.

“If the regulatory objective is to not discriminate against individuals that they are encountering in the practice of law, to not treat them unfairly based on a characteristic they may have — those are things that are not just important to EDI principles but also professionalism as well as compliance with the rules of professional conduct,” Yates said, noting later that the EDI requirements would apply to judges as well.

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