On CLE and Diversity: the Florida Rule

Originally published on LinkedIn on December 26, 2021, updated April 2022

April 2022 Update: "The ABA has amended its continuing legal education policy to do away with numeric requirements for panel diversity, a move that may bring it into compliance with rules set by the Florida Supreme Court for CLE program accreditation in the state." -- Mark. D Killian, Florida Bar News, Apr. 18, 2022

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Continuing Legal Education (CLE) is a common requirement for many attorneys to maintain an active license to practice law. Some jurisdictions have annual requirements, while some may have multi-year cycles of qualifying hours and topics to cover to remain current. For those who are admitted to multiple jurisdictions, the appeal of CLE from a national organization, like the American Bar Association, helps streamline the reporting requirements needed across multiple jurisdictions with different hourly credit calculations, among other distinctions. Throw in some free courses on top of that, and the value of membership is even greater.

So you can imagine how disappointing it might be to find out you can no longer get credit for CLE courses in one jurisdiction while it may still qualify in others. Specifically, if you were a member of The Florida Bar this year, you were bound by a Florida Supreme Court decision in April that disqualified CLE from certain providers, including the ABA, that used what the Court considers to be diversity quotas to select their instructors or panelists.

Of course, this opinion caught some attorneys off-guard, as they had already planned to meet their CLE requirements through ABA event participation during the year, so it was no surprise when the Court invited comments on the new CLE rule, the impact of the relatively short notice was a noted theme of the overall feedback.

But the real point of contention is whether the way the ABA seeks to improve diversity and representation in its panelists, something the Florida Business Law Section further tried to emulate, constitutes an impermissible quota or not. While the ABA and its supporters argued the Florida Supreme Court misconstrues its diversity policy, and even added some clarifying language to that effect, the Court clearly disagrees, and with its updated order this month, only made minor modifications, including delaying the effective date of the order to Jan. 1, 2022. It should be noted the decision would have been unanimous, if not for Justice Jorge Labarga's lone dissent.

And with that, Florida attorneys who attended ABA CLE events earlier this year should have received updated certificates of completion along with instructions on how they could self-report the hours for credit while they were still eligible under the revised order. In most cases, for CLER credit, it's just a matter of providing the certificate to the Florida Bar CLE office to post the credits on the attorney's transcripts.

Come January, however, Florida attorneys will have to check closely on the status of their CLE sponsors and dates of on-demand courses, whether they are subject to the latest guidelines under Rule 6-10.3.

What do you think? Is this an impermissible quota or a laudable goal? Will the ABA lose Florida members because of this? Share your thoughts in the comments below.

References

• Florida Bar CLE site https://www.floridabar.org/member/cle/

• American Bar Association CLE site https://www.americanbar.org/groups/departments_offices/abacle/

• "Florida Rule Change," American Bar Association, Dec. 20, 2021, at https://www.americanbar.org/events-cle/mcle/jurisdiction/florida/florida-rule-change/

• "ABA responds to Florida Supreme Court opinion on ‘quotas’ in CLE programs," ABA News, July 15, 2021, at https://www.americanbar.org/news/abanews/aba-news-archives/2021/07/aba-responds-to-florida-supreme-court-opinion-on-quotas-in-cle-p/

• "ABA responds to Florida court order barring CLE ‘quotas’," July 19, 2021, at https://www.americanbar.org/news/abanews/aba-news-archives/2021/07/florida-cle-response/

• Mark D. Killian, "SUPREME COURT TAKING COMMENTS ON NEW CLE RULE," The Florida Bar News, May 25, 2021, at https://www.floridabar.org/the-florida-bar-news/supreme-court-taking-comments-on-new-cle-rule/

• Debra Cassens Weiss, "Refusing to budge, top Florida court says ABA imposes CLE panel ‘quotas,’ state lawyers can’t get credit for participation," ABA Journal, Dec. 16, 2021, at https://www.abajournal.com/news/article/top-florida-court-reaffirms-state-lawyers-cant-get-cle-credit-for-aba-programs-because-of-quotas

• Debra Cassens Weiss, "Lawyers in Florida can't get credit for ABA's new CLE programs because of state ban on diversity quotas," ABA Journal, May 25, 2021, at https://www.abajournal.com/news/article/lawyers-in-florida-cant-get-credit-for-aba-cle-programs-due-to-state-ban-on-instructor-quotas

• Supreme Court of Florida, No. SC21-284, IN RE: AMENDMENT TO RULE REGULATING THE FLORIDA BAR 6-10.3., December 16, 2021, at https://www.floridasupremecourt.org/content/download/815712/opinion/sc21-284.pdf

• Supreme Court of Florida, No. SC21-284, IN RE: AMENDMENT TO RULE REGULATING THE FLORIDA BAR 6-10.3., April 15, 2021, athttps://www.floridasupremecourt.org/content/download/732072/opinion/sc21-284.pdf