Effective May 1, 2011 for compliance year ending December 31, 2011 the annual credit requirement has been
changed to 12 credits including 2 Ethics/Professionalism credits. There is no longer a separate
professionalism credit requirement. Attorneys have the option of completing board approved courses
dealing with legal ethics or professionalism.
Only those portions of a cle program specifically approved or specified as granting ethics are permitted to
fulfill the attorney's ethics requirement. Ethics content must be separate and identifiable
on a course provider's agenda.
Ethics topics include, but are not limited to, instruction focusing on the Code of Professional
Responsibility as they relate to legal ethics, malpractice avoidance, lawyer fees and the duties
of lawyers to the judicial system, the public, clients and other lawyers.
|Definition Of Professionalism |
|The Professionalism is conduct consistent with the tenets of the legal
profession as demonstrated by a lawyer's civility, honesty, integrity, character, fairness, competence,
ethical conduct, public service, and respect for the rule of law, the courts, clients, other lawyers,
witnesses, and unrepresented parties.
|DISTINCTION BETWEEN ETHICS AND PROFESSIONALISM|
The New Mexico Rules of Professional Conduct set the floor
that supports our status as a lawyer in good standing. Professionalism is the ceiling or higher
standard to which all lawyers should aspire.
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.
Theabove definitions and the following guidelines are
intended to assist course providers when developing professionalism course content.
The kinds of issues implicit in the above definitions and which can be the subject of
discussion for accredited course content are:
The principles as outlined in A Lawyers Creed of Professionalism;
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 relation
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.
|Specific topics which can be the subjects of Professionalism CLE are:
Alternative Dispute Resolution: negotiation, settlement, mediation, arbitration, other dispute resolution processes alternative to litigation
Advocacy: effective persuasive advocacy techniques for trial, appellate, and other representation contexts
Bias Issues: ethnic, gender racial, socioeconomic status, ADA
Clarity in Communication: with the Court, other lawyers, clients, government agencies, the public
Client Communication Skills
Client Concerns and Expectations
Discovery: Effective techniques to overcome abuse
Law Practice Management: issues relating to development and management of a law practice
including client relations and technology to promote the efficient, economical and competent
delivery of legal services. Law practice management-professionalism CLE includes, but is
not limited to, those activities which (1) teach lawyers how to organize and manage their
law practices so as to promote the efficient, economical and competent delivery of legal services;
and (2) teach lawyers how to create and maintain good client relations consistent with existing
ethical and professional guidelines so as to eliminate malpractice claims and bar grievances
while improving service to the client and the public image of the profession.
Responsibility for improving the administration of justice
Responsibility to ensure access to the legal system
Responsibility for performing community, public and pro bono service
Restoring and sustaining public confidence in the legal system, including courts, lawyers, the systems of justice
Quality of Life Issues: balancing priorities, career/personal, transitions, emotional and mental health, stress management, substance abuse
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 Commission
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?" and
the more confrontational the better. Practicing lawyers
invariably respond better to realism in teaching, and
professionalism issues can be made just as real as any
other CLE-taught topic.
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 Commission
feels that, given the very limited and minimal requirement
of two hours of professionalism CLE per year 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.
The Commission on Professionalism
will serve as the statewide clearinghouse of professionalism and serve
as an advisory commission for professionalism training, education and
resources to support a catalyst for positive change. It will serve
as a forum for communication, support and collaboration among all
legal constituencies in New Mexico.
The New Mexico Board of Continuing
Legal Education will approve individual programs to assure that each
program approved for Professionalism credit contains appropriate
course content, relating to legal professionalism according to the
definitions and suggestions contained in these Guidelines.
No course will be accredited
for professionalism continuing legal education credit without
the MCLE Board's approval.
|EXAMPLES OF COURSES|
A number of different designs for
professionalism courses have been developed which have been well-received
by the participants while meeting the goals set out by the Commission.
The following formats have
proven effective in eliciting active participation and fostering reflection in CLE professionalism courses:
|1. The hypothetical format:
A panel is asked to respond to
hypothetical situations which raise questions or concerns ranging
from pure ethical issues to professionalism concerns. The panel
is facilitated in its discussion by a lawyer whose job it is to
push the discussion and point out inconsistencies or disagreements.
The ethical issues can be addressed in terms of the Rules of
Professional Conduct, but the professionalism concerns tend not
to be subject to right/wrong answers. This format tends to work best
with discrete groups (i.e., lawyers who work in the same practice area)
where the hypotheticals can be drawn from the day-to-day practice
of those particular lawyers.
|2. Use of role play through videotapes:
A valuable training technique, especially
when interaction with the audience is a goal, is to use role-plays to dramatize
a particular issue or concern. There are now available several videotapes that
were developed specifically to demonstrate through role-plays various ethical
and professionalism dilemmas. Videos produced by the American Bar Association,
the University of Pennsylvania Center on Professionalism, and the Georgia and
Florida Commissions are particularly well-suited for these courses, and have
been used successfully in both large and small group sessions. The use of role-
plays can be an effective technique for generating active and spirited audience
participation in a discussion.
|3. Use of non-role play videotapes:
Various national CLE providers and other
jurisdictions that have Professionalism requirements have developed videotapes on
various professionalism topics, such as pro bono
(the ABA's Time for Justice - Pro Bono in Action),
civility, clients, discovery, gender, service
(the Georgia Commission's Perspectives on Lawyer Professionalism,
a 9 videotape series of interviews with lawyers and judges, and
the committee on professionalism historical video series).
|4. Town hall meeting:
Particularly conducive to discussions
of professionalism for local bar associations, in-house CLE, or firm
retreats is the "town hall meeting" format. After introductory remarks
about the need to explore professionalism in contemporary practice,
the major portion of the meeting is devoted to discussions in small
breakout groups of professionalism concerns and suggestions in the
particular context. These discussions can be stimulated by oral
questions or a written questionnaire. Responses to the questions
provide data for the sponsoring organization to use as it deems
appropriate. For example, some firms have responded to town meeting
data highlighting the need for more guidance for associates by
instituting mentoring programs.
There are a variety of other designs
and programs that are appropriate for in-house CLE programs, for 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
Any sponsor, group, or
person planning a CLE session on professionalism should view
the Commission and the State Bar's Center for Legal Education as
clearinghouses for information and materials on professionalism.
The Commission encourages
sponsors to tailor their professionalism sessions to the
concerns of the group to whom it is presented. Once the sponsor
has determined a format for the professionalism session, the
Commission can be contacted and asked to search its files to
ascertain whether relevant materials are available for the session
being planned. The Commission is willing to assist; to the extent
it receives sufficient advance notice, in the planning of a CLE
course on professionalism.
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. They should expand the
horizons of participants with respect to the richness and variety of
the profession and the range of interests compatible with practice in
the profession. And lastly, they can stimulate the imagination about
the potential of a professional life.
|WHAT THIS TRAINING SHOULD NOT BE|
The Creed of Professionalism and
the Guidelines for Professionalism have been adopted as encouragement,
guidance and assistance to individual lawyers, law firms, and local and
speciality bar associations. They are specifically NOT intended:
To supersede or amend the disciplinary rules established by the Supreme Court;
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;
To establish a new basis for any formal disciplinary proceedings or enforcement; or
To establish any bar policy or set of principles, unless the State Bar of New Mexico
or any county or district bar association chooses to adopt a the "Lawyer's Creed" as a statement of policy.
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.