The 2018 Indiana State Bar Association annual meeting began last week with an intense debate in the House of Delegates over a proposal designed to make a statement about the bar’s position on hot-button topics: should attorneys be required to attend CLE programs about diversity and mental health issues?
Though the House of Delegates had other business to accomplish during its Oct. 10 meeting, which was originally scheduled for only three hours, delegates found themselves in overtime as they passionately debated the merits of expanding the state’s CLE requirements to align with an American Bar Association Model Rule. The hour-long back-and-forth between delegate members and representatives of the ISBA Diversity and Wellness committees, which jointly proposed the CLE resolution, covered issues ranging from racial tension to political discourse to stigma, revealing a stark philosophical divide between the resolution’s supporters and opponents.
In the end, the proposal was adopted, giving ISBA officers authority to “take such other and further action as may be necessary to implement this resolution,” including obtaining support from the Indiana Supreme Court — an act that must accomplished before the proposal can be enacted.
Indianapolis attorneys Norris Cunningham and Patricia McKinnon, leaders of the diversity and wellness committees, respectively, presented the joint resolution at the French Lick Resort, where the ISBA held its annual meeting Oct. 10-12. Under the resolution, lawyers would be required to take one hour of CLE programming each in the areas of diversity and inclusion and mental health and substance abuse every three years.
If adopted by the Supreme Court, the new CLE requirements would join the existing requirement for all attorneys to complete three hours of professional responsibility CLE for every three-year period. McKinnon noted, though, that the diversity and mental health CLEs would not automatically carry an ethics credit, though those programs could be approved as ethics CLEs if requested.
Cunningham presented the diversity and inclusion CLE requirement as an opportunity for attorneys to learn how to better connect to their clients. Indiana’s population is becoming increasingly diverse, he said, so attorneys would be well-served to better understand various cultures and ethnicities.
From a mental health perspective, McKinnon harkened back to a 2016 study released by the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation, which found that 21 percent of attorneys qualify as problem drinkers, while 28 percent suffer from depression and 19 percent suffer from anxiety. Despite those numbers, McKinnon said the stigma surrounding mental illness often keeps struggling attorneys from seeking help. But with mandatory mental health programming, McKinnon said attorneys struggling with mental illness or substance abuse could learn about the resources available to them without the fear of being “found out.”
“This is an opportunity for the ISBA to make a statement about the importance of diversity and inclusion and taking care of ourselves,” Cunningham told the House.
Delegates wasted no time in voicing both their support and opposition to the joint proposal, with attorneys lining up at two microphones to share their thoughts even before Cunningham and McKinnon finished their presentation. The first to speak was Bernice Corley, the executive director of the Indiana Public Defender Council, who thanked the ISBA committees for drafting the proposal and said the IPDC had recently begun offering resiliency training to help attorneys who feel burned out.
Corley’s support was echoed by attorneys such as James Brandon Dillon, a Gary lawyer who leads the James C. Kimbrough Bar Association. Dillon, who is black, said many parts of the state have few or no nonwhite attorneys, so teaching those attorneys about other cultures will help better assist diverse clientele. Dillon also supported the mental health CLE requirement, opining that attorneys “know better than to self-identify” as having a mental illness in the climate of today’s legal profession.
But the passion in favor of the diversity and mental health CLEs was matched by the passion against them, with one attorney calling the proposed requirements “political indoctrination.” Among the opposition was Michael Parkinson, a Tippecanoe County attorney who said he feared the proposed changes would shift the focus of CLE away from teaching attorneys about the practice of law and toward teaching them how and what to think.
Ryan Dell of Johnson County questioned the relevance of the diversity and mental health mandates, saying such education might be more useful in law schools than among the practicing bar. He also questioned whether those two topics would be as relevant in 10 to 20 years as they are today.
One notable speaker during the debate was Christina Miller, chair of the Supreme Court’s Commission for Continuing Legal Education. Miller informed the House that the commission had not voted to recommend the resolution to the justices, citing a belief that there were other ways to accomplish the goal of increasing lawyer awareness of diversity and mental illness. The ISBA Board of Governors, however, supported the resolution.
The House of Delegates ultimately passed the proposal with a 73-51 vote. House chair Amy Noe Dudas asked each delegate to stand and be counted as either for or against the resolution after a voice vote was too close to determine the outcome.
Employees vs. contractors
Though the House of Delegates meeting was scheduled to end at 5 p.m., the debate over the diversity and wellness committees’ proposal ran until that point, forcing the delegates to miss part of the annual meeting’s welcome reception to finish other business. One issue that was addressed during the meeting’s overtime was a recommendation from the Legal Ethics Committee to amend Indiana Rule of Professional Conduct Guideline 9.1.
That guideline requires nonlawyer assistants to be employees of a law firm or lawyer. But committee chair Steven Badger said the proposal would strike that language based on the belief that lawyers could benefit from the use of independent contractors.
When pushed on that benefit, Badger told the House that sometimes, lawyers need help on only a project-by-project or part-time basis, so hiring a full-time legal assistant would not be practical. However, language that prohibits nonlawyer assistants from establishing direct client relationships would remain intact.
Despite some pushback, the Guideline 9.1 resolution passed, also with the Board of Governors’ support.
In addition to the proposed resolutions, delegates also approved two amendments to the ISBA bylaws, both of which were presented by newly minted president J. Todd Spurgeon.
In light of the bar’s new partnerships with all four Indiana law schools, the first bylaw amendment expands the role of law students who join the bar. Specifically, the proposal allows law students to become full voting members of any ISBA committee or section, though they still cannot hold a bar or committee leadership position, except for leadership of any law student committee that is created.
Similarly, the House approved an amendment allowing affiliate members, such as paralegals or legal librarians, to vote and serve as officers of any bar committee and as officers, other than chair, of any section. However, affiliate members cannot serve on the House of Delegates or Board of Governors. Before the vote, Spurgeon told the House he planned to appoint a paralegal as a committee chair if the amendment was approved.
Finally, the House of Delegates approved the nomination of Todd Meyer as its chair-elect and heard reports from multiple legal and judicial organizations, including reports from Chief Justice Loretta Rush, Indiana Court of Appeals Judge Melissa May and Office of the Attorney General chief deputy Aaron Negangard, who spoke in the absence of Attorney General Curtis Hill.•