The new issue of the National Law Journal carries Dee McAree’s report (subscription required) on the challenge of Minnesota attorney Elliot Rothenberg to the Minnesota Supreme Court’s elimination-of-bias continuing legal education requirement for attorneys. The requirement is premised on a finding of pervasive racial bias in Minnesota’s judicial system and requires submission to elimination-of-bias training (which, according to the rule, cannot include substantive legal education) as a condition of an attorney’s license to practice law. Rothenberg’s challenge to the rule is based on the First Amendment.
The story is not illuminating, but it is probably useful to have the national press put a spotlight on the case, and I believe there will be additional attention focused on the story in the next week or two when Fox News broadcasts a segment on it. Power Line reader Peter Swanson makes an appearance in the story toward the end:
A battle over anti-bias CLE courses
A prominent Minnesota lawyer is putting his license on the line to fight a state Supreme Court rule requiring Minnesota lawyers to satisfy a two-hour continuing legal education requirement to promote the “elimination of bias.” The attorney, Elliot Rothenberg, contends that the “elimination of bias” course requirement is unconstitutional and is being used to espouse a political ideology that is offensive to some attorneys.
In a brief and in oral arguments before the Minnesota Supreme Court on Jan. 5, Rothenberg argued that the state should not sponsor the dissemination of political ideologies as a condition of licensure for lawyers. Supporters of the “elimination of bias” rule assert that the approximately 600 courses that are offered are not meant to push political perspectives. They claim that the rule requires lawyers to be exposed to information about other cultures, races or people with disabilities and provides an essential first step to improving the quality of legal services.
Rothenberg, a solo practitioner based in Minneapolis, declined to be interviewed for this article while the case is pending before the Minnesota high court. In re Petition of Elliot Rothenberg, No. A03-0884. Rothenberg asserts in his brief to the court that “[b]igotry is evil. Every fair-minded lawyer and judge would agree. However, the elimination of bias program, far from advancing an ideal which would enjoy virtually universal support, has turned into an engine of divisive political ideology.”
He points to questionable courses including: a “Rally for Credit” for Lynne Stewart, the New York attorney accused of passing messages from a client imprisoned for terroristic acts; courses objecting to the USA Patriot Act and racial profiling; and courses with titles like “Understanding Islam.” Rothenberg and his supporters say the rule should provide an “opt out” for dissenters. CLE courses should offer substantive legal education-not an agenda of political correctness, they assert.
The “elimination of bias” rule, Rule 6(b) of the Minnesota State Board of Continuing Legal Education, was promulgated by the state Supreme Court in 1996 after the court assembled a task force to study racial bias in Minnesota courts. The rule stipulates that accredited courses cannot focus on substantive legal issues unless the information is discussed within the context of racial bias in the legal profession.
Jennifer Giesen, a lawyer for the Minnesota Disability Law Center and the main author of its amicus brief in support of the rule, said the elimination of bias requires more than substantive law classes. For example, in a substantive CLE class on the Americans With Disabilities Act, a lawyer might learn that he must provide an interpreter for a deaf person. But in an elimination-of-bias CLE class, the lawyer might learn how to work with a deaf person or how to work with the interpreter.
Rothenberg has grabbed headlines before as the attorney for Dan Cohen in the landmark case Cohen v. Cowles Media Co., 501 U.S. 663 (1991), in which the U.S. Supreme Court ruled that Minnesota newspapers were bound to honor an anonymity contract with a source, and rejected claims of First Amendment protection.
Peter Swanson, corporate counsel at TCF National Bank in Minneapolis, who submitted an amicus brief in support of Rothenberg, claims that California, Colorado and West Virginia are among the other states that have passed similar anti-bias requirements. According to Swanson, who has been following the bias requirement since its inception in 1996, Minnesota’s was the first mandatory program and is the most stringent. California, for example, allows attorneys to satisfy their anti-bias CLE requirement through self-study, which does not compel attorneys to reveal their ideology by choosing a particular course, Swanson said.