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Center for Professionalism: CLE Guidelines

CLE Guidelines


Professionalism carries with it the charge of insuring that the practice of law in this state remains a high calling, enlisted in the service not only to the client, but of the public good as well.

In 1997 the Supreme Court of Florida amended the continuing legal education structure by requiring 5 of the continuing legal education requirement hours, in the area of legal ethics, professionalism or approved substance abuse programs.

The following guidelines are intended to provide sections, committees and other organizations with clear goals and purposes of this requirement and what the desired outcomes from this training will be. If these guidelines are utilized in the design and implementation of the various continuing legal education, a forum will have been created whereby lawyers, judges and law students can explore the meaning of professionalism.

DISTINCTION BETWEEN ETHICS AND PROFESSIONALISM
The Rules Regulating The Florida Bar are the floor that supports our status as a lawyer in good standing. Whereas professionalism is the ceiling or higher standard that all lawyers should aspire to.

Laws and the Rules of Professional Conduct establish minimal standards of consensus impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are not "ethical" simply because they act lawfully or even within the bounds of an official code of ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code. Truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity and fairness .

"Ethics" are commonly understood in the CLE context to mean "the law of lawyering" and the rules by which lawyers must abide in order to remain in good standing before the bar. "Professionalism" harkens back to the traditional meaning of ethics discussed above. The commission believes that lawyers should remember, in counseling clients and determining their own behavior, that the letter of the law is only a minimal threshold describing what is legally possible, while professionalism is meant to address the aspirations of the profession and how we as lawyers should behave. Ethics discussions tend to focus on misconduct -- the negative dimensions of lawyering. Hopefully, the professionalism discussions will have an affirmative dimension -- a focus on helping, caring, protecting, counseling, and setting a good example.

GENERAL PURPOSES
The general goal of the professionalism CLE requirement is to create a forum in which lawyers, judges and legal educators can explore and reflect upon the meaning and goals of professionalism in contemporary legal practice. Building a community among the lawyers of this state is a specific goal of this requirement.

STANDARDS
On May 16, 1990, the Board of Governors of The Florida Bar approved the Ideals and Goals of Professionalism . Contained therein are the aspirational standards that is the backbone of professionalism.

The kinds of issues implicit in the Ideals and Goals of Professionalism , and which can be the subject of discussion at CLE events, are:
  • the independence of the lawyer in the context of the lawyer-client relationship;
  • the conflict between duty to client and duty to the system of justice;
  • the conflict in the duty to the client versus the duty to the other lawyer;
  • the responsibility of the lawyer to employ effective client communications and client relations skills in order to increase service to the client and foster understanding of expectations of the representation, including accessibility of the lawyer and agreement as to fees;
  • the lawyer's responsibilities as an officer of the court;
  • misuse and abuse of discovery and litigation;
  • the lawyer's responsibility to perceive and protect the image of the profession;
  • the responsibility of the lawyer to the public generally and to public service; and
  • the duty of the lawyer to be informed about all forms of dispute resolution and to counsel clients accordingly.
A major goal of this training is to encourage introspection and dialogue about these issues. It is very difficult, if not impossible, to accomplish this in large, undifferentiated groups. The commission encourages the designers of these events to provide for smaller, more intensive groups. Practice-oriented programs are preferred, and they can be "taught" in small classes with an intense but relatively collegial atmosphere. They involve the lawyer/student in the process of lawyering. By definition, they present the sorts of problems lawyers typically face, and they search for solutions or ways of thinking about these problems. In courses such as these, the interest of the lawyer/student usually rises in direct proportion to his or her personal engagement in the session.

Therefore, the Center strongly encourages the designers of the sessions to explore more creative, introspective, interactive and simulation-based methods for presenting professionalism issues in the CLE course. Experiential training should be emphasized. Lawyers tend to learn best by example, so models of behavior and professional values should be identified and discussed. Above all, courses should be structured to confront the question, " How will you handle this situation when it occurs in your practice?" Practicing lawyers invariably respond better to realism in teaching, and professionalism issues can be made just as real as any other CLE-taught topic.

The Center recognizes that it is possible and legitimate to define other training topics as encouraging professionalism. For example, substantive law training enhances competency and, therefore, assists lawyers in meeting their professional responsibility to their clients. Nevertheless, the Center feels that, given the very limited and minimal requirement of professionalism CLE and the aspirational goals envisioned by the supreme court, skills and substantive training are eligible only for general CLE credit and not for professionalism CLE credit.

CONTINUING LEGAL EDUCATION RULE AMENDMENT

July 1998
6-10.3 Minimum Continuing Legal Education Standards

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(b) Minimum Hourly Continuing Legal Education Requirements. Each member shall complete a minimum of 30 credit hours of approved continuing legal education activity every 3 years. Five Two of the hours must be in the area of legal ethics or professionalism, including approved substance abuse programs. Courses offering credit in professionalism must be approved by the center for professionalism. These 5 hours are to be included in, and not in addition to, the regular 30-hour requirement. If a member completes more than 5 hours during any reporting cycle, the excess professionalism credits cannot be carried over to the next reporting cycle.

ACCREDITATION
The Center for Professionalism will assist in the preparation and review and approval of professionalism continuing legal education. No course will be accredited for professionalism continuing legal education credit without Center approval.

There are a variety of designs and programs which are appropriate for in-house CLE programs, specialized groups, and for large groups. The goal of any design, however, should be to generate thought-provoking and introspective discussion among the participants about the meaning of professionalism in contemporary legal practice.

The Center is viewed as a clearinghouse for information and materials on professionalism by any sponsor, group, or person planning a CLE session on professionalism. The Center encourages sponsors to tailor their professionalism sessions to the concerns of the group to whom it is presented. Once a format for the professionalism session has been determined by the sponsor, the Center can be contacted and asked to search its files to ascertain whether relevant materials are available for the session being planned.

RESULTS DESIRED
If successful, these courses will inculcate a habit of talking with colleagues and engaging in dialogue that is essential to a healthy professional life. They also will encourage the habit of reflection (or the "stop and think" rule of morality). They will acquaint lawyers with the harsher realities of the profession, but also will equip them with a variety of strategies for coping with these realities. They will also deepen one's awareness of a lawyer's particular professional situation and can provide a sense of empowerment or control over a professional career rather than a passive acceptance of an untenable situation.

WHAT THIS PROGRAM SHOULD NOT BE
The Ideals and Goals of Professionalism have been adopted as encouragement, guidance and assistance to individual lawyers, law firms, and local and circuit bar associations. They are specifically not intended:

o To supersede or amend the disciplinary rules established by the Supreme Court;

o To establish a standard of conduct against which lawyer negligence might be judged or to become a basis for the imposition of civil liability of any kind;

o To establish a new basis for any formal disciplinary proceedings or enforcement; or

o To establish any bar policy or set of principles, unless The Florida Bar or any local bar chooses to adopt a particular "Lawyer's Creed."

The commission's hope is that members of this profession will recognize the special obligations that attach to their calling and will also recognize their responsibility to serve others and not be limited to the pursuit of self interest. The Ideals and Goals of Professionalism cannot be imposed by edict, because moral integrity and unselfish dedication to the welfare of others cannot be legislated. Nevertheless, a public statement of principles of ethical and professional responsibility can provide guidance for newcomers and a reminder for experienced members of the bar about the basic ethical and professional tenets of their profession.

Professionalism CLE

PHILOSOPHY
Professionalism is about both principles and character. All lawyers would prefer that their practices be character-building rather than corrupting. They want to be able to achieve a good life in the practice of law. That is much more a character issue than one of principle. Honesty is a moral principle, but it also is an issue of character ("I should not lie because lying makes me a liar, and being a liar is a bad way to live.").

Professional behavior, however, is not simply a matter of character and principle; it is a matter of choice and decision-making. Thus, the issue is not all or nothing. It is not a question of being or not being ethical. It usually is not a question of right or wrong. It is a question of doing or not doing the ethical or professional thing. In our high pressure world, it may not be possible to act professionally all the time. It is, however, possible and important to act more professionally more often.

Professionalism discussions are too often framed as simple issues of rule-following or rule- violation. But the real issue facing lawyers as professionals is developing the capacity for critical and reflective judgment. The CLE sessions should strive to cultivate reflective judgment about the practice of law and to assess how well current practices are serving the legal profession and the system of justice in light of the traditions of our practice.

CLOSING THOUGHTS
The success of the creation of the Supreme Court's Commission on Professionalism and the Center for Professionalism is evidenced by all that has been accomplished in the relatively short period of existence. Throughout the state, thousands of lawyers, judges and law students have attended seminars, symposiums, conclaves, orientations, etc. with a professionalism component. The Center itself has moderated over 120 seminars to various groups totaling approximately twelve thousand lawyers, each of which have carried some type of CLE (Continuing Legal Education) or CJE (Continuing Judicial Education) credit.

Demand for programs and information continues to grow, and reaction to same is positive. Other states now contact the Center for information and advice on the creation of a Center, wanting to use The Florida Bar's Center as a model. Advice to those wanting to follow our footsteps include having the full support of the court and the bar. Additionally, requiring CLE in professionalism creates a demand that might not otherwise exist.

[Revised: 08-12-2009]