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Posted June 2024When I was contacted about writing an article about the Mississippi Supreme Court’s rejecting the CLE Commission’s proposed change to the Bar’s CLE rules, I figured there wasn’t much more to say than this sentence. Ho, hum; nothing to see here. The proposed change would permit the ethics component of the twelve-hour annual requirement to include “legal ethics, professional responsibility, malpractice prevention, substance abuse, mental health or diversity, equity and inclusion (added language in italics).” The Mississippi Supreme Court denied the petition without opinion. Justice King, however, had a decided, though somewhat ambiguous, opinion on the matter:
The words diversity, equity and inclusion have been the source of great distortion. Some of that distortion has been occasioned by the decisions of various individuals who have seen in its distortion a partisan and personal advantage. Also, some of that distortion has been occasioned by individuals who, while knowing better, merely join the bandwagon for fear of being publicly assailed by those using this distortion for partisan and personal advantage.
In the Matter of the Petition of the Miss. Comm’n on Continuing Legal Education to Amend Rule 1 of the Rules and Regulations for Mandatory Continuing Legal Education, No. 2023–1193 at p.3 (Miss. Mar 5, 2024) (King, P.J. objecting).
Hmmmm – what? A personal dispute among judges? A political dispute among judges? A rejection of “woke” politics? More research was in order.
"Terrible to have a law telling you you got to do something. But you ain’t going to do it unless there is.”
Turns out that the proposal came from a change to the American Bar Association’s model rules.
The ABA’s proposed Rule mandates diversity and inclusion programming as a CLE requirement. The Mississippi proposal would make it optional. What could that hurt? Seemingly innocuous, however, it appears to be part of a larger ideological struggle between the states and the ABA.
According to the American Bar Association’s website, it was formed “to set the legal and ethical foundation for the American nation.’ In its early years, the ABA, like the profession itself, was dominated by white, male, Protestant lawyers. Not surprisingly, during those early years, the ABA opposed a constitutional amendment to prevent child labor and fought against many of the New Deal programs pushed by President Roosevelt. During the McCarthy era, the ABA even voted to expel any Communist or Marxist members!
As its membership became more diverse, the ABA’s positions changed. In the early 1990’s, it adopted a resolution supporting the right of women to have abortions. In keeping with this shift, the organization has also taken positions supporting gay marriage and opposing the death penalty. These stances have alienated conservative members, and may account for the drop in membership from half of the country’s lawyers to about 20%.
“Think for yourself and question authority.”
Recently, attorneys and other groups have challenged the authority of the ABA, as well as state bars, to govern the practice of law. For example, a group of Texas lawyers sued the state bar over its requirement of attorney membership, and the Fifth Circuit recently upheld that challenge, holding that the Bar’s political and ideological policies violated those members’ First Amendment rights. McDonald v. Longley, 4 F.4th 229 (5th Cir. 2021).
At the same time that the ABA amended the Mandatory CLE Rule, it promulgated a requirement that any ABA program with three or more speakers include one who is diverse. The Florida Supreme Court deemed it a quota program and denied CLE credit to any lawyer attending a program whose sponsor selected speakers in accordance with that Rule. In re Amendment to Rule Regulating the Florida Bar, 6–10.3, 315 So. 3d 637, 639 (Fla. 2021). The court later amended its decision to exclude previously taken courses, but the ABA had removed the requirement. www.reuters.com
Along with CLE Rule 1, the ABA adopted a change to Rule 8.4 of the Model Rules on Professional Misconduct. That Rule would prohibit an attorney from engaging 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.” The Rule exempted “legitimate advice or advocacy”. Nonetheless, according to Josh Blackman, a constitutional law professor at the South Texas College of Law, “the rule has been rejected by almost every state that has considered it.” Construing it as an abridgement of freedom of speech, a Pennsylvania court even declared it unconstitutional and enjoined its application. Greenberg v. Haggerty, 491 F.Supp.3d 12 (E.D. Pa. 2020). The ABA reconsidered and amended the Rule.
More recently, after an increased recognition of the organization’s apparent bias, the ABA has lost its ability to preview judicial nominees, first under Republican leadership, and, later, under the Biden administration. Of course, it may still voluntarily rate nominees after they have been selected. It may be that the ABA’s power to accredit law schools will later come under attack. Blackman justifies the resistance to the ABA’s proposals as stemming from its “position of privilege and power” in shaping governmental policies. If the ABA no longer represents the legal community, the argument goes, then that power may be misplaced.
But back to the proposed CLE requirement. I reviewed the requirements in each state (and that was not easy, as there is no uniform location for CLE Rules, since some are administered by the state bars and others by state courts) and the District of Columbia. This highly unscientific survey shows, as we so often say, a “split among the jurisdictions.” Specifically:
4 states and the District of Columbia have no CLE requirement;
25 states have not adopted a provision similar to that proposed by the ABA;
6 states have adopted a provision using the ABA proposed language; and
14 states have adopted a provision similar to the ABA’s proposal.
The “similar to” states often describe the ethics requirement in more detail than the ABA’s proposal, moved the requirement to place a limit on course approval, or included the requirement in the reporting rule.
“I have not aligned myself with any party. Sitting tight, waiting for an attractive offer.”
The disparity of acceptance cannot be neatly categorized as a red state/blue state issue. Connecticut has failed to adopt the model rule, while North Dakota has approved it. Given this lack of wholesale adoption, it’s hard to peg Mississippi as an outlier. It’s likewise difficult to interpret the Mississippi Supreme Court’s decision as simply the Republican adherence to the party line that it seems on its face. While that could be the case, as Justice King appears to believe, it could also be part of a general trend of rejecting the ABA’s powerful influence over legislation related to the legal profession. The ABA’s Model Rules used to be adopted almost as soon as they were proposed, but times have changed. And only time will tell if this “revolt” culminates in a further significant diminishment of the ABA’s authority.
Terryl Massey is a retired staff attorney with the federal court.
