THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CH. 82]
Amendments to the Continuing Legal Education Board Rules and Regulations for Diversity and Sexual Harassment Awareness Training for Attorneys
[52 Pa.B. 6838]
[Saturday, November 5, 2022]
Notice of Proposed Rulemaking Notice is hereby given that The Continuing Legal Education Board (the ''CLE Board'') of the Supreme Court of Pennsylvania is considering recommending to the Supreme Court of Pennsylvania that it adopt new Amendments to Rule 105 of the Pennsylvania Rules for Continuing Legal Education (''Pa.R.C.L.E.'') and Section 3 of the applicable Regulations for Continuing Legal Education.
The proposed Rule and Regulation changes will, if adopted, rename the ''Ethics'' category to ''Ethics and Professionalism'' and create a one-time mandatory ethics and professionalism component of the CLE requirement for training on Diversity, Inclusion and Anti-Bias and Sexual Harassment Awareness and Prevention as set forth in Attachments A and B.
Specifically, the proposed Rule and Regulation changes, if adopted, will:
• Maintain the present 12-credit annual requirement with the substantive credit requirement to remain at 10;
• Rename the ''Ethics'' category, to ''Ethics and Professionalism,'' preserving the requirement of at least two credits annually; and
• Require that by the conclusion of a lawyer's second full compliance period following adoption, each attorney must obtain one Diversity, Inclusion and Anti-Bias Training (collectively ''Diversity'') credit and one Sexual Ha-rassment Awareness and Prevention Training (collectively,Sexual Harassment'') credit, each related to lawyers and the practice of law, which shall be tracked by the CLE Board as ''Ethics and Professionalism'' credits and included as part of what is currently an attorney's annual two-credit Ethics requirement.
The chart below is a comparison of the current CLE requirements and the proposed rule and regulation change:
CURRENT PROPOSED 12 CREDIT ANNUAL CLE REQUIREMENT 12 CREDIT ANNUAL CLE REQUIREMENT 10 OF 12 CREDITS SUBSTANTIVE 10 OF 12 CREDITS SUBSTANTIVE 2 OF 12 CREDITS ETHICS 2 OF 12 CREDITS ETHICS AND PROFESSIONALISM NO DIVERSITY OR SEXUAL HARASSMENT REQUIREMENT 1 CREDIT DIVERSITY AND
1 CREDIT SEXUAL HARASSMENT WITHIN FIRST
2 COMPLIANCE PERIODS, EACH RELATED TO LAWYERS AND THE PRACTICE OF LAWThe net result of this proposed rule and regulation change would be that by the conclusion of a lawyer's second full compliance period following implementation of this proposed rule and regulation change, every Pennsylvania attorney will have taken at least one hour of Diversity Training and at least one hour of Sexual Harassment Training. Subject to further Order of the Pennsylvania Supreme Court, this requirement then terminates as to each lawyer upon completion of such coursework, although lawyers then will have the option of taking additional Diversity Training and Sexual Harassment Training coursework within the basket of available Ethics and Professionalism courses. Newly admitted attorneys will also have additional exposure to such categories through the Bridge the Gap program.
By way of background, in recent years, both the Supreme Court of Pennsylvania and the CLE Board have received input from various professional organizations and stakeholders affiliated with the Pennsylvania legal community expressing support for mandatory coursework on the proposed subject matter. The Supreme Court asked the CLE Board to review the matter and, if deemed appropriate by the CLE Board, make an informed recommendation to the Court for any proposed Rule or Regulation changes. In response, the CLE Board reviewed the comments received and the myriad of additional factors to help inform the CLE Board as to the appropriate response to these concerns. As part of this analysis, the CLE Board considered the following:
• In 2005, the Court created the Pennsylvania Interbranch Commission on Gender, Racial and Ethical Fairness, which recommended that all Court employees be required to participate in elimination of bias training, and that such training be available to all aspects of the justice system.
• In 2008, the Pennsylvania Supreme Court adopted its policy on Non-Discrimination and Equal Employment Opportunity in which the Court declared that, ''it is the policy of the Unified Judicial System of Pennsylvania (UJS) to ensure that all individuals having business withthe UJS are treated in a dignified, civil, respectful and non-discriminatory manner.'' This policy was cited in various bar association letters of support for mandatory Diversity, Inclusion and Anti-Bias Training. In addition to other forms of discrimination, this policy expressly prohibits all forms of sexual harassment in the courts throughout the Commonwealth.
• Advocates for diversity training noted that for over a decade voluntary coursework has been offered, yet the attendees were primarily minority attorneys or attorneys with a history of work on diversity and inclusion issues.
• Various studies consistently indicated a significant number of women in the law firm workplace have experienced sexual harassment. For example, an international research firm, Acritas, published a study in 2018 involving approximately 8,700 lawyers (including 2,000 senior in-house counsel, 1,700 ''higher performing'' law firm attorneys, and 5,000 lawyers responding to a web survey) that 35 percent of women attorneys surveyed indicated that they had been sexually harassed at work, which included receiving sexually suggestive comments, and being subject to inappropriate physical contact.
The CLE Board spent considerable time evaluating whether such training should be mandatory and concluded that some level of mandated requirement was needed to address these issues. The CLE Board was mindful of the levels of concern that all attorneys participate in some type of meaningful programming addressing Diversity and Sexual Harassment Training issues. Without some type of mandated training, many attorneys who would benefit from better understanding of these workplace issues would not even consider the relevance to their practice or the positive impact such training may have on their law firm or their practice. Ultimately, the CLE Board concluded that the mere availability of such coursework is insufficient to address these topics and to ensure a comprehensive dialogue takes place among Pennsylvania licensed attorneys—a dialogue facilitated through continuing legal education requirements.
The CLE Board also makes note of a relevant diversity initiative it has undertaken in recent years. Through a partnership with the Carnegie Mellon University Entertainment and Technology center, the CLE Board developed an interactive educational experience, entitled, ''Objection'' which explores diversity and bias issues in the legal profession. This scenario-based ethics program is made available to Pennsylvania Accredited Providers and is regularly offered to lawyers throughout the Commonwealth. The CLE Board is committed to working with course providers to develop a catalogue of meaningful training options in subjects of Diversity and Sexual Harassment Prevention. These efforts will not only facilitate compliance with the proposed ethics and professionalism requirement but also spread awareness of compelling issues and help reinforce a principled and non- discriminatory legal infrastructure in Pennsylvania.
Interested persons are invited to submit written comments to the proposed amendments on or before January 5, 2023. Comments should be submitted by email to kbuggy@pacle.org or regular mail addressed to the Continuing Legal Education Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 3400, PO Box 62495, Harrisburg, PA 17106-2495.
By the Continuing Legal Education Board of the
Supreme Court of Pennsylvania
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 82. CONTINUING LEGAL EDUCATION
Subchapter A. PROFESSIONAL RESPONSIBILITY (Editor's Note: The text of Rule 105 does not reflect the current codified text in 204 Pa. Code.)
Rule 105. CLE Requirement.
(a) General Requirements:
1. Every active lawyer shall annually complete, during the compliance period to which they are [he or she is] assigned, the CLE required by the Board pursuant to these rules and established in Board regulations.
2. CLE shall be on the subjects of:
(i) substantive law, practice, and procedure, and
(ii) [lawyer] ethics and professionalism [, the rules of professional conduct]
(iii) [professionalism]
(iv) [substance abuse as it affects lawyers and the practice of law].
3. The minimum annual CLE requirement shall be [nine (9) hours, effective September 1, 1994, and] twelve (12) hours, [effective September 1, 1995].
(b) Fulfillment Requirements: The CLE requirement shall be fulfilled by attending the required number of CLE courses by providers or completing a CLE activity approved by the Board as sufficient to meet the CLE general requirement.
(c) Every newly admitted attorney shall attend the Bridge the Gap program, of at least four (4) credit hours, sponsored by an approved Bridge the Gap CLE provider prior to their [his or her] first compliance deadline.
(d) Lawyers with an Emeritus license shall complete an annual CLE requirement of eight (8) hours pursuant to these rules and established in Board regulations.
Subchapter B. CONTINUING LEGAL EDUCATION BOARD REGULATIONS (Editor's Note: The official text of section 3 is set forth at 52 Pa.B. 6838).
Section 3. Minimum Education Requirement.
Every active lawyer shall complete the following annual CLE minimum requirements:
(a) [Commencing January 1, 1994,] The CLE requirement [for each compliance group] shall be a minimum of [one (1)] two (2) hours of ethics and professionalism [or substance abuse] and a minimum of [five (5)] ten (10) hours of substantive law, practice, and procedure,[.] and shall be applicable to the compliance groups as follows:
Compliance Group I—April 30 of each calendar year
Compliance Group II—August 31 of each calendar year
Compliance Group III—December 31 of each calendar year
(b) [Commencing September 1, 1994, the CLE requirement for each compliance group shall be a minimum of one (1) hour of ethics, professionalism, or substance abuse a minimum of eight (8) hours of substantive law, practice, and procedure and shall be first applicable to the compliance groups as follows:
◦ Compliance Group II—August 31, 1995
◦ Compliance Group III—December 31, 1995
◦ Compliance Group I—April 30, 1996]
For purposes of this Regulation, the CLE requirement on ''ethics and professionalism'' shall include (1) lawyer ethics and the rules of professional conduct, (2) lawyer professionalism, (3) substance abuse as it affects lawyers and the practice of law, (4) diversity, inclusion and anti-bias training related to lawyers and the practice of law, (5) sexual harassment awareness and prevention training related to lawyers and the practice of law, and (6) such other subjects as may be designated in the future by the Pennsylvania Supreme Court.
(c) [Commencing September 1, 1995, the CLE requirement shall be a minimum of one (1) hour of ethics, professionalism, or substance abuse and a minimum of eleven (11) hours of substantive law, practice and procedure and shall be first applicable to the compliance groups as follows:
◦ Group II—August 31, 1996
◦ Group III—December 31, 1996
◦ Group I—April 30, 1997]
To be completed by the conclusion of a lawyer's second full compliance period following adoption of this Regulation, the CLE requirement for ethics and professionalism shall include a minimum of one (1) hour in subjects relating to diversity, inclusion and anti-bias training, and a minimum of (1) hour in subjects relating to sexual harassment awareness and prevention training.
(d) [Commencing January 30, 2014, the CLE requirement shall be a minimum of (2) hours of ethics, professionalism, or substance abuse and a minimum of (10) ten hours of substantive law, practice and procedure and shall be first applicable to the compliance groups as follows:
◦ Group I—April 30, 2015
◦ Group II—August 31, 2015
◦ Group III—December 31, 2015]
For all newly admitted lawyers, in addition to their requirement to fulfill their Bridge the Gap requirement, a minimum of one (1) hour in subjects relating to the diversity, inclusion and anti-bias training, and a minimum of one (1) hour in subjects relating to sexual harassment awareness and prevention training must be completed no later than the end of the second period in which their CLE compliance is required.
(e) [CLE credits for ethics, professionalism, or substance abuse may be applied to any substantive law, practice, and procedure requirement.]
Subject to further Order of the Pennsylvania Supreme Court, the CLE ethics and professionalism requirement that lawyers must take a minimum of one (1) hour in subjects relating to diversity, inclusion and anti-bias training, and a minimum of one (1) hour in subjects relating to sexual harassment awareness and prevention training automatically terminates as to each lawyer upon completion of such coursework, although lawyers then have the option of taking, but are not mandated to take, additional coursework in these subjects to fulfill their annual CLE ethics and professionalism requirement.
(f) [e] CLE credits for ethics and professionalism, [or substance abuse] may be applied to any substantive law, practice, and procedure requirement.
(g) [f] The CLE requirement for lawyers with an Emeritus status shall be a minimum of two (2) hours of ethics and professionalism [or substance abuse] and a minimum of six (6) hours of substantive law, practice and procedure.
[Pa.B. Doc. No. 22-1684. Filed for public inspection November 4, 2022, 9:00 a.m.]
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