Moving the Benchmark on Diversity – by John S. Kiernan

John S. Kiernan

President’s Column, October 2016

As news events of the past year have dramatically illustrated, issues of race — including issues related to economic disparity, unequal access to opportunities, statistically disproportionate outcomes in the criminal justice system, educational differences, mistrust of minority ethnic groups or religions, bias crimes, police conduct, overt discrimination, and even implicit or unintended bias by well-meaning people — remain among the most critical and divisive issues of our time. Our country’s defining national commitment to equality, tolerance and embrace of differences has always been, and remains today, in fundamental tension with our historical legacy of racial discrimination and segregation, and with the continuing current effects of that legacy. That incongruity warrants continued effort to promote equal opportunity, to attack and remedy discrimination and to promote and celebrate diversity. That need exists not only with regard to racial discrimination, but also with regard to treatment based on gender, religion, national origin, sexual orientation or identification, age, disability and other categorizations that have led to intentional or unintentional discrimination.

If any segment of society should be a leader in these efforts, it’s the legal profession, which must be a central guardian of fundamental values of equality, access to justice and the rule of law. But while lawyers have admirably been in the forefront of efforts to combat discrimination — through innumerable instances of claims advanced, laws advocated for and enacted, programs developed, judicial decisions issued and positions taken in support of promoting diversity, inclusion and equality of opportunity – the legal profession has fallen short, too, particularly as a model for professional development.

The frustratingly slow pace of progress on diversity in law firms is evident in the 2015 Diversity Benchmarking Report the City Bar recently released. Despite increased efforts to achieve greater diversity and some gains in leadership positions, there is something close to a consensus among the firms providing information for that report that the gains are slower and less substantial than they (or their clients) want. Firms also report higher rates of attrition and erosion in the associate pipeline for minority and women lawyers than for white male lawyers.

If the shortfall of diversity in the profession is no longer about lack of awareness, effort, or resources, then what can be done to spur progress on diversity in law firms, and in achieving inclusiveness and the elimination of bias in the legal profession and the administration of justice? As the City Bar joined a dozen other bar associations in advocating recently, improved education and training of lawyers increasingly appears to be an important component of any solution. A collection of bar associations including the City Bar, with the encouragement of the ABA, have proposed that New York State’s licensing and regulatory authorities governing continuing legal education requirements should include, as a separate required credit (but without increasing the total number of required credits), programs addressing diversity, inclusion and the elimination of bias (“D&I CLE”).

This proposal seems consistent with the evolution of sensibilities about CLE since even before mandatory CLE began during the 1990s. “Until 1957,” wrote then-City Bar President Harrison Tweed in 1960, “almost all of the education offered to practicing lawyers was designed to improve professional competence and to do nothing more.” In 1957, though, over 100 lawyers convened for what became known as the “Arden House Conference,” ultimately generating a statement that “brought into the continuing legal education picture for the first time, and in bold relief, the proposition that educational opportunities should not be aimed simply at an improvement in professional competence but, in addition, should be designed to help the lawyer to fulfill a wide range of professional responsibilities: to the courts, to the administration of justice, to law reform, to the law-making process, to the profession and to the public.”

In a similar spirit, mandatory CLE was initially conceived, supported and implemented as a way to enhance not only lawyer competence but also public trust in the profession. The 1992 ABA report “Law Schools and the Profession:  Narrowing the Gap,” which provided a platform for states considering whether to mandate CLE requirements, identified four basic values of professional responsibility: “1) providing competent representation; 2) striving to promote justice, fairness and morality; 3) striving to improve the profession; and 4) professional self-development.”

Including a mandatory diversity and inclusion component as part of lawyers’ CLE obligations should advance all of these purposes. As with the current requirement that four of the 24 CLE credits experienced attorneys must accumulate each year must involve training in ethics, this requirement would mean that lawyers must also include at least the required number of biennial credit hours in D&I CLE. This would not increase New York’s current 24-credit biennial requirement (or 32 credits for newly admitted attorneys), but would just affect the allocations of those hours.

The ABA has taken two major steps in the past six months to act on a broad consensus among the legal profession’s leadership regarding the importance of addressing nationwide concerns and reinforcing the profession’s commitment to diversity and equal opportunity. First, 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. The resolution, like the current proposal for New York, does not specify the number of hours of D&I CLE required or call for an increase in the total number of MCLE credits required per cycle.

Then, on August 8, the ABA House of Delegates unanimously passed Resolution 109, which amends Model Rule of Professional Conduct 8.4 to provide that it is professional misconduct 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.”

Some lawyers may resist the notion that an authority should require each individual lawyer to undergo further education on this subject over the course of a career, including because they already feel satisfied about their current perspectives regarding diversity. But just as the imposition of a particularized ethics requirement in every lawyer’s CLE program was intended, at least in part, to convey a message about priority and commitment rather than to imply that this requirement was needed because all lawyers were unethical, imposition of a diversity and inclusion requirement would reflect the profession’s formal public embrace of its aspirational best self. Clients are increasingly diverse and insistent that their lawyers become more diverse, practices are more international and multijurisdictional, and the judiciary continues to grow in its diversity. Lawyers need to be equipped to recognize cultural differences and biases that may impact their personal interactions in all aspects of their practice – not just as lawyers, but as arbitrators, mediators, advisors, employers, partners, officers of the court and citizens. Embracing diversity is both the right thing to do and good business.

The U.S. Department of Justice announced in June the rollout of a department-wide required Implicit Bias Training Program for 28,000 lawyers and investigators, predicating this step on views that “[t]he research is clear that most people experience some degree of unconscious bias, and that the effects of that bias can be countered by acknowledging its existence and utilizing response strategies.” In August, writing in support of requiring CLE credit in diversity and inclusion and elimination of bias, New York City Corporation Counsel Zachary W. Carter wrote to Chief Judge Janet DiFiore that “[f]or the last ten years the Law Department has required all of its employees to participate in Diversity and Inclusion programs” and that the “evaluations of our programs by our participants have been overwhelmingly favorable, notwithstanding some initial skepticism.” The New York State Judicial Institute also offers diversity training for new judges as part of its curriculum.

California and Minnesota require D&I CLE, and the passage of ABA Resolution 107 will likely spur numerous other states to act. New York should be in the forefront of this movement.

D&I CLE would continue the ongoing education of the profession in one of the most foundational and important elements of our national self-definition and one of the core components of the rule of law. It should foster continuing focus on the importance of diversity and inclusion, and progress in the erosion of discrimination and implicit bias. It would also convey an important public message, in a time of intense attention to matters of race and other forms of discrimination, regarding the legal profession’s institutional commitment to equality, access to justice and the rule of law.

John S. Kiernan is President of the New York City Bar Association.