July 3, 2024 – A petition filed with the Wisconsin Supreme Court would ensure that Wisconsin attorneys can get credit for continuing legal education (CLE) programs related to “cultural competency” and “reduction of bias within the legal system.”

The State Bar of Wisconsin filed the petition (24-04) last week with the unanimous support of its Board of Governors, the organization’s 52-member policy-making body. Board members are elected to represent members in 16 districts statewide plus the nonresident, senior, young, and government lawyer divisions.

Currently, the Board of Bar Examiners (BBE) will approve some programming in these areas but there are no set criteria for what is creditworthy.

This makes it challenging for the State Bar of Wisconsin PINNACLE^® team and other CLE providers to design programs that will be approved.

If approved by the Wisconsin Supreme Court, the petition would allow lawyers to get CLE credit for a maximum of six hours per two-year reporting period “on the subjects of cultural competency and the reduction of bias within the legal system.”

Lawyers must get 30 hours of CLE per reporting period, including three credits in ethics and professional responsibility (EPR). Lawyers may also get up to six credits in the area of law practice management (LPM) and up to six credits in the area of lawyer awareness and understanding (LAU) per reporting period.

The petition would create another category of capped credits, on a voluntary basis. That is, lawyers would not be required to take credits in the areas of “cultural competency” or “reduction of bias,” but may do so if they choose. It’s not mandatory.

Current Petition Differs from Previous Petition

The State Bar of Wisconsin filed a petition in 2022 that the Wisconsin Supreme Court denied. It would have allowed attorneys to fulfill the 30 hours required with programs on the subjects of “diversity, equity, inclusion, access, or recognition of bias.”

That would have included “topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias.” Again, that petition was denied by a 4-3 majority.

However, the current petition is different in certain aspects. It is more narrowly tailored, allowing credit for “cultural competence” and “reduction of bias” CLE only, and the number of credits is capped at six per two-year reporting period.

Courses on “cultural competency” would be “designed to improve client communication and representation through the lens of knowledge and understanding of diverse populations with a sensitivity to cultural and other differences in personal traits for application when interacting with members of the public, judges, jurors, litigants, attorneys, and court personnel.”

Courses on “reduction of bias” would be “designed to educate attorneys to identify and reduce from the legal profession, the practice of law, and the legal system at large, biases against persons because of but not limited to age, race, gender identity, economic status, veteran status, creed, color, religion, national origin, disability, or sexual orientation and to remove barriers to access to justice arising from discriminatory behavior.”

These definitions would allow CLE providers to create CLE programming that fits within these definitions, for approval by the BBE. Again, the BBE currently approves some programming in these areas, usually if tied to ethics or other substantive practice area.

The majority denied the 2022 petition (4-3) without a hearing. The denial did not include a rationale that a majority joined. Thus, the State Bar has filed this new petition, which is more narrowly tailored and more clearly defined than the previous petition filed in 2022.

The BBE previously indicated that it would have supported the previous petition if the number of programs lawyers could voluntarily take in the area of diversity, equity, inclusion, access, or recognition of bias, was capped at six credits. The pending petition is capped at six credits per two-year reporting cycle.

The State Bar hopes this updated version will satisfy any concerns the court’s majority and the BBE had with the previous petition.

Not Mandatory

When the previous petition was filed, there were some who suggested the petition was merely the first step in making DEIA credits mandatory. However, this was incorrect.

Prior to 2022, a State Bar task force was charged with, among other things, exploring whether CLE credits in the DEIA area should be mandatory for members.

Ultimately, after a survey of the members revealed a preference for “voluntary” credits only, the State Bar pursued a voluntary petition.

There was never a proposal for a “mandatory” DEIA CLE petition. Although several members of the State Bar’s Board of Governors have voiced the opinion that DEIA credits should be mandatory, the majority of the board did not pursue mandatory credits.

Similarly, the pending petition is not mandatory and is not the first step in making “cultural competency” and “reduction of bias” credits mandatory. The petition is meant to give lawyers the option of taking these programs for CLE credit if they choose.

"The State Bar's Board of Governors voted unanimously to support this petition, which would ensure that members can get CLE credit for these types of programs, on a voluntary basis, up to 6 credits,” said outgoing State Bar President Dean Dietrich.

"A State Bar study group looked at mandatory DEI credits and ultimately did not recommend it, in part because of a survey of members indicating that a majority did not want training in these areas to be mandatory. We did not pursue that avenue.”