New Illinois Supreme Court rule promotes diversity of thought and experience

Lest there be any doubt, the Illinois Supreme Court is actively involved in shaping the practice of law in Illinois. The court recently exercised its authority to regulate the practice of law in Illinois by adopting the recommendation of the Illinois Supreme Court’s Commission on Professionalism requiring licensed Illinois attorneys to attend one hour of diversity and inclusion instruction as part of a lawyer’s obligation to satisfy the continuing legal education requirements articulated in Supreme Court Rule 794.

Specifically, Supreme Court Rule 794(d) now requires:

(1) Each attorney subject to these Rules shall complete a minimum of six of the total CLE hours for each two-year reporting period in the area of professionalism, civility, legal ethics, diversity and inclusion, or mental health and substance abuse.

(2) Beginning with the two-year reporting period ending June 30, 2019, these minimum six hours shall include either completing the Rule 795(d)(11) yearlong Lawyer-to-Lawyer Mentoring Program or:

(i) At least one hour in the area of diversity and inclusion and 
(ii) At least one hour in the area of mental health and substance abuse¹

Like the minimum continuing legal education mandate articulated in Supreme Court Rule 794 in general, the new diversity and inclusion requirement demonstrates the Illinois Supreme Court’s continued relevance in monitoring, regulating, developing and maintaining the practice of law in Illinois by requiring lawyers to remain educated, knowledgeable, skilled and connected to relevant issues that benefit lawyers and our clients. By keeping Illinois practitioners educated and relevant, the practice of law remains a viable and useful profession.
Like no other time before, Illinois citizens have access to innumerable options to the exclusion of sound legal advice from a licensed Illinois lawyer. And, like no time before, Illinois practitioners face enormous pressures, resulting in epidemic dependency, addiction, anxiety and depression. And, it should come as no surprise that in the greatest country ever known, our clients, as well as ourselves—and our future business partners, colleagues and clients—all have become, or are becoming, more and more diverse.

Our supreme court recognizes the trends, monitors the practice, and mandates the changes designed to maintain the highest level of excellence in our profession. Many younger lawyers may not recognize the changes to the practice. While older lawyers, thankfully, continue to practice law, none practice law without continued training and exposure to new laws, trends and practice techniques, all designed to augment—certainly not to supplant—their significant experience.

Today, the Illinois Supreme Court challenges us again, this time with diversity and inclusion. Perhaps in this acrimonious political environment, it may be no surprise that the concept of diversity and inclusion has been greeted with a negative reaction by some. It is critically important to recognize that diversity is not some sophomoric platitude, or worse, tantamount to affirmative action mandated by our supreme court. Rather, diversity and inclusion involve acknowledging broader experiences and broader thoughts regardless of the color of one’s skin or one’s gender or sexual preference or identity—and where better than in the practice of law. If lawyers are to remain viable and relevant in the changing world we know is here, and position ourselves to take advantage of new business opportunities and experiences, we must embrace diversity of thought and experiences in our communities and amongst our colleagues, and include that diversity in the practice of law.

For example, no one can dispute that the practice of law has benefited enormously from the inclusion of women not so long ago in recognizable numbers. Yet, even after being admitted to the practice of law, women have had to challenge norms, and even seek reasonable accommodations such as a restroom near the courtroom—normal accommodations otherwise available to their male colleagues. The challenge was not resolved with admission, but continues to require vigilance.

Our profession benefited with the inclusion of women not simply out of farness, although it was certainly unfair to deny access to the profession to women simply based on gender. Rather, the benefit was derived by including those with diverse thought and experience. Perhaps because of our training, the practice of law recognized the unfairness and actively removed access barriers to women seeking a legal education. However, barriers within the practice remain as obstacles in law firms and in the offices of general counsel. Indeed, studies confirm that few women manage law firms or operate as general counsel, and there are still far too few female partners, and retention of women lawyers is abysmally low.

The same can be said of those of our colleagues with shades of skin color. We have all benefited by including those with diverse thoughts and experiences, but it is not sufficient to conclude that all is well now because it is illegal to deny access to law schools based on that difference—even if that deplorable practice was once acceptable. And the same can be said of ethnicity, social status, lack of wealth, sexual preference and identity, and those who embrace Middle Eastern cultures. As with women, barriers to opportunities continue to exist. Those barriers are manifestly apparent by the absence of significant advancement, opportunity and retention. Those same missed opportunities by those with diverse backgrounds, thoughts and experience are missed too by law firms and offices of general counsel—and those lost opportunities adversely affect the bottom line.

It is not an adequate explanation or an acceptable excuse that folks like to be with their own kind, or that folks are understandably more comfortable with like thinking people who have similar experiences. There is nothing understandable about that at all. The “comfort zone” explanation may be the rationale for private clubs, but not for successful law firms or offices of general counsel. It is a question of missed opportunities and missed business due to close-minded cultural attitudes that can be addressed and changed at the law firm level and in the offices of general counsel—not by magic or by legislative fiat, but by talking honestly and respectfully about changes that need to be addressed within law firms and in the offices of general counsel. And that dialogue does not begin without acknowledging the costs and losses associated with actively maintaining the status quo, and then recognizing the benefits of considered change in attitudes and culture. It’s always a work-in-process, with progress being the goal. Justice is a verb, not a noun, and successful management will accept the challenge and work to direct resources to implement positive change.

Diversity of thought and experience recognizes the very real opportunities found in skin color, gender, ethnicity, social status, wealth, sexual preference and sexual identity. Diversity and inclusion are not pejorative terms and are not some nefarious code for improper affirmative action. The challenge is to properly, soberly, responsibly and respectfully—above all respectfully—acknowledge diversity of thought and experience as a positive, and then to properly, soberly, responsibly and respectfully—above all respectfully—incorporate diversity of thought and experience into the business of the practice of law. The Illinois Supreme Court is not providing us with the answers, but challenging us to recognize and appreciate that the future of the profession relies on us to meet this latest challenge. Such is the responsibility of a learned profession.

The goal of progress is opportunity, and we all benefit from opportunity. However, opportunity is not satisfied only by admission to the practice, but requires thoughtful incorporation of opportunities in the form of diversity of thought and experience, by management to be sure, but also by those with diverse thinking and experience. The solution will be in creating something that is obviously missing in firms and in the offices of general counsel—an environment of inclusion with realistic expectations and fair metrics to measure success. Encouragement and recruitment for sure, tempered by the reality that this is a tough business for everyone—but that we all want and expect success. What may be missing in law firms, and in the offices of general counsel, is responsibility for failure. Indeed, success has many parents and failure is an orphan. The alternative is continued exclusion with repeated failures. Exclusion is tantamount to extinction in our business, and it always has been.

With prescience, clarity and courage rare for her time, Shirley Chisholm identified the challenge directly: “You don’t make progress by standing on the sidelines, whimpering and complaining. You make progress by implementing ideas.”² Chisholm’s guidance is not directed only at those with no seat at the table, but her guidance is as direct challenge to management, too. To those excluded, she instructed: “If they do not give you a seat at the table, bring a folding chair.”³ Chisholm’s wisdom speaks today.

It is also critical to recognize that exclusion is part of everyone’s experience, except, perhaps, a precious few who may enjoy legacy or privilege that is unknown to the vast majority. Regardless, every young lawyer is excluded, albeit some may have an easier time overcoming exclusion. The question is: Where is your folding chair?

Chisholm challenges management, too. To be successful in the 21st century, management must acknowledge the fact of exclusion and create an environment that celebrates the opposite of exclusion—inclusion.

Management has always been faced with this challenge, and the first step is to create a fair environment, with fair metrics implemented fairly to judge productivity, opportunity, growth, professionalism, and business acumen. Every young lawyer recognizes when there is no such plan, but only lip service without any commitment to fairness. It is abundantly clear to those looking to advance and grow that form follows function. If advancement, growth and recognition depend on unspoken privilege, then management’s goal of retention is an abject failure, and management should not expect any different result.

Similarly, nepotism, by itself, is always a failure for the same reason. If a new hire is the daughter or son of a client with the goal of continued ingratiation with that client – a perfectly reasonable reason to hire that person—then acknowledge that fact, and do not hide it behind platitudes. Build safeguards to protect others without that advantage, and also to protect the client’s progeny—perhaps an independent supervisor coupled with an environment of fairness and inclusion, and of course, well-communicated metrics, applied fairly. Again, form follows function, and everyone knows the difference, despite words to the contrary.

However, it does not stop there. Fairness, like justice, should be treated like a verb. Management must take steps to not only recruit and welcome diversity of thought and experience, but to continually foster inclusion and to actively follow through with real measures specifically designed to create an environment of fairness inclusion. Some consider this heavy lifting, but it need not be so. Indeed, as if to prove the point, we have many examples in experience.

With the advent of women in real numbers, many in law management sponsor activities to honor and include women. Firms and companies sponsor awards for women entrepreneurs and female leaders. Some firms recognize sexual preferences by actively recruiting diverse lawyers and promoting causes important to them. Nothing feels better than being wanted and then recognized, and then supported. Who would ever leave that environment? Jewish, Irish and Italian lawyers were historically excluded for years—some still experience vestiges of exclusion to this day, and some even face unfair reactions and hate. Supporting causes that battle exclusion and hate provides support for those individuals. Also, who does not like a party? Who, but the closed-minded, don’t enjoy a celebration of heritage, the recognition of a patron saint, the recognition of the contributions of an explorer or pioneers of thought and those who fight hate and bigotry?

Why stop there? Our predecessors provided further examples of inclusive practices even in the face of prejudice and hate to Irish, women, Italians and Jews. Why not a recognition of Gandhi and Indian independence, or Gay Pride, or the contributions of Native Americans, or those who practice Islam? Why, after all of these years, do so few Americans fail to acknowledge Black History Month and the contributions of 20 percent of our population? These are opportunities, not burdens. The goals of progress and new business generated by inclusion result in retention of those with those diverse experiences and opportunities. It is not crass to acknowledge that one reason to do so is to enhance a business profile—it is just smart, and the right thing to do.

Supreme Court Rule 794(d) presents the challenge. By nature, lawyers seek out and accept challenges. We recognize that justice is dynamic. One does not simply buy a cup of justice, but rather, one works for a just result—and keeps working to avoid backsliding. The work is not finished simply because those with diverse backgrounds, thoughts and experiences are admitted. Indeed, the work of making admission to the practice meaningful only just begins at admission. Hence, the challenge provided by Illinois Supreme Court Rule 794(d).
Diversity and inclusion are not pejorative terms, but opportunities in waiting.

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William J. Anaya practices with Greensfelder, Hemker& Gale, P.C., in Chicago. He may be reached at wanaya@greensfelder.com.