New anti-bias CLE requirement as of Sept. 1 does not increase required number of ethics credits
BY TODD ALBERSTONE
Many Washington practitioners are aware by now that the Washington Supreme Court amended Rule 11 of the Admission and Practice Rules (APR), effective Sept. 1, to include a requirement of a single hour of Mandatory Continuing Legal Education (MCLE) credit relating to equity, inclusion, and mitigation of bias in the legal profession and the practice of law in each MCLE reporting period. MCLE staff at the Washington State Bar Association and the MCLE Board have received a number of activity applications, requests, and questions concerning the application of this new requirement. This article is intended to respond to some of the common questions received and to clarify the application of the amended rule to the accreditation of new courses.
Background and Language of Amended Rule
The amendment to APR 11 originated from a proposal presented to the MCLE Board in 2018 by the WSBA Diversity Committee (now the Diversity, Equity and Inclusion Council), together with Washington Women Lawyers. The specific wording of the amendment, as promulgated by the MCLE Board, supported by the WSBA Board of Governors, and adopted by the court, appears within the overall MCLE ethics requirement at APR 11(c)(1)(ii):
(ii) at least six credits must be in ethics and professional responsibility, as defined in subsection (f)(2), with at least one credit in equity, inclusion, and the mitigation of both implicit and explicit bias in the legal profession and the practice of law. (Emphasis added.)
The new language, highlighted above, became effective on Sept. 1. This amendment does not increase the number of credits required under the ethics or general MCLE requirements; it simply requires that one hour out of the six required ethics credit hours every three years be devoted to the study of issues relating to equity, inclusion, and the mitigation of both implicit and explicit bias in the legal profession and the practice of law.
Timing and Reporting of Credit
As with all MCLE requirements, the credit must be obtained during the individual professional’s relevant reporting period. Since the amendment became effective Sept. 1, the credit must be obtained on or after that date.
The first group required to report based on this amendment is the 2023-2025 reporting group. The deadline for the first group to earn this one-hour credit is Dec. 31, 2025. The deadline to report and certify credits is Feb. 1, 2026. This requirement will then apply to each subsequent reporting period.
Availability of Courses
The WSBA Board of Governors and WSBA CLE Department are committed to ensuring the availability of courses to fulfill this requirement, including a free online course, available both live and on-demand, provided by the WSBA CLE Department each year in this subject. Licensed legal professionals may find this and other free online courses by visiting the WSBA CLE webpage (www.wsba.org/for-legal-professionals/wsba-cle), under “Featured Seminars.” Additionally, CLE sponsors frequently offer courses in this subject area. You may search for approved courses on this and other topics on the MCLE Board Activity Search webpage (https://mcles.wsba.org/Search/Activity). Please note only courses offered on or after Sept. 1, 2022, will be eligible to fulfill the new requirement.
The MCLE Board carefully drafted this amendment to tie the subjects of equity, inclusion, and mitigation of bias specifically to the legal profession and the practice of law for Washington legal professionals. As with any ethics course, the goals are closely linked to the individual legal professional’s own practice and conduct, and to the improvement of legal institutions, the legal profession generally, and the community. To be accredited, courses must be intended for lawyers and legal professionals, and geared toward the legal profession and the practice of law. More general courses in history, current affairs, or community issues that relate to equity and inclusion, as laudable as they may be, will not qualify if they are not intended and designed for legal professionals or do not relate to the practice of law, legal institutions, access to justice, the court system, administrative bodies, or the wide range of other topics of particular relevance to legal professionals in Washington.
Review of Activity Applications
MCLE staff and the MCLE Board are often called upon to review activity applications from individual members seeking credit for courses that are not currently accredited in Washington (e.g., a course accredited in another state). The same accreditation standards set by APR 11 will apply to those applications. However, MCLE staff at the WSBA and the MCLE Board are aware that the individual member is typically in the best position to explain why a course they attended should qualify for credit. Accordingly, each application is reviewed on an individual basis to determine whether it fulfills the requirements of APR 11, including whether it relates to the legal profession and the practice of law.
IMPACT OF AMENDED RULE
The MCLE Board strongly believes that this amendment will positively affect the legal community, the practice of law, and legal institutions in Washington. The Board was glad to see the Washington Supreme Court order that this important amendment become effective this year, and applauds the Board of Governors and the WSBA CLE Department on their commitment to make free online courses on the topics listed in the amendment available.
For more information about MCLE requirements visit: www.wsba.org/