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Now is the time for Virginia to add mindful lawyering as a recognized MCLE legal topic

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Four months ago, I experienced a transformative Mindful Lawyering program at New York’s Garrison Institute. As icing on the cake, the program even included three hours of talks, including one hour of legal ethics, to benefit those, like I, belonging to bars that require a minimum number of annual continuing legal education credits.

I timely filed an application with the Virginia Bar for the three CLE credits. Unfortunately, last month, the Virginia Mandatory Continuing Legal Education Board denied my request for CLE credits, with the ten-word explanation that “The program did not focus on a recognized legal topic.”

I refrained from blogging about the matter just yet, wanting first to see if I could persuade the MCLE board to reverse its rejection of MCLE credits. I saw this as an opportunity to achieve change in the right direction. I shared the matter with one of the mindfulness program’s main organizers and numerous attendees, and sent the Virginia MCLE director a detailed appeal and request to reconsider the denial of MCLE credits. By letter dated September 1, 2015 (but apparently not delivered to me, by email, until September 15), the MCLE director sent me a similar denial, but this time adding an additional reason for denying MCLE credits: “The program did not focus on a recognized legal topic. The written materials were insufficient to qualify for CLE credit as required under MCLE Board Opinion #14.”

Had I been on the Virginia MCLE Board and wanted to minimize controversy in denying my application for MCLE credits, I would have ditched the assertion that the program did not focus on a recognized legal topic, and would have simply said that the written materials were insufficient to qualify for CLE credit. However, my reading of MCLE Board Opinion No. 14 is that the MCLE Board had discretion to approve the CLE materials for this lawyer mindfulness program and not require voluminous materials in the light of the CLE program involved.

Each state bar certainly is entitled to set its own rules and policies for granting or denying MCLE credits. The New York State CLE Board accredited the three CLE hours in advance, and I submitted my CLE certificate of attendance that said as much. Numerous states grant CLE credit reciprocity when other state bars have accredited a CLE program. Virginia does not, but I think such reciprocity should become a reality in Virginia.

Below I reprint my letter seeking a reversal of the denial of my MCLE credit application. If you agree that mindfulness programs should be granted CLE credit by state bars, please communicate that to the bars to which you belong.

August 25, 2015

Dear Ms. Cartwright:

Thank you for your letter dated August 21, 2015, about my request for three CLE credits (including one for legal ethics) from the Mindful Lawyering program at the Garrison Institute in May 2015.

I respectfully appeal and request a reconsideration of this credit denial. I have spent considerable time drafting this appeal not out of much concern for my own annual CLE credits (which I easily can obtain elsewhere) but because this denial seems to portray mindful lawyering as not a recognized legal topic and, as a result, not sufficiently worthy for lawyers to learn and practice, when lawyers should feel they can point to traditional bar support when justifying to their employers the benefit of attending mindfulness programs (mindfulness is about being in the moment, with meditation helping but not essential for mindfulness) and spending part of one’s lunch break meditating. Particularly because mindful lawyering has become a widely accepted practice in the nation’s mainstream legal community, I would hope at the very least that the Virginia State Bar’s broader leadership will want to have a chance to decide whether it will follow the legal profession’s support of mindfulness, or go the opposite direction.

Your letter seems to state solely one ground for denying me the requested CLE credit, which is that “The program did not focus on a recognized legal topic.” I did not find a list of recognized legal topics on the Virginia State Bar’s website, beyond finding listings of pre-authorized CLE programs. I did find 15VAC5-70-30, which includes the following: “The course must have significant intellectual or practical content. Its primary objective must be to increase the attendee’s professional competence and skills as an attorney, and to improve the quality of legal services rendered to the public… The course must pertain to a recognized legal subject or other subject matter which integrally relates to the practice of law, or to the professional responsibility or ethical obligations of the participants.”

Here, the Mindful Lawyering program had significant practical content and its primary objective was to increase the attendees’ professional competence and skills as an attorney, and to improve the quality of legal services rendered to the public. Mindfulness practice is tremendously helpful for lawyers to pay essential full time and attention to their clients, work, and time management; to be civil to all; and to have a productive way to avoid and address work-related stress when work-related stress, depression and substance abuse are all too common among too many lawyers.

VSB Regulation 103(c) (Standards for Approval of [CLE] Programs) expressly makes eligible for approval CLE programs that address law practice management, stress management and time management. Mindfulness practice addresses all of those three categories. For law practice management, mindfulness provides lawyers with the tools to pay full time and attention to their work by being compassionately and empathetically (to themselv and all others) in the present rather than feeling overwhelmed by their workload and demands from judges, clients, procedural rules and other sources. For stress management, mindfulness practice can help diffuse stress starting with the simple act of returning one’s focus on one’s breathing in and out, in the moment. For time management, mindfulness helps the practitioner feel space to get each task prioritized and completed right with full time and attention.

Decades ago, mindfulness for lawyers may have seemed a fanciful concept. However, mindfulness for lawyers (and for the rest of society) is now mainstream. Here is CUNY law school founding dean and mindful lawyering proponent Charles Halpern’s article on mindfulness in the law.

The Miami Dade Bar Association and South Florida chapter of the Federal Bar Association have a Mindfulness In Law Joint TaskForce. Numerous judges follow meditation and/or mindfulness practice, including United States Supreme Court Justice Stephen Breyer. (The Mindful Lawyer, 2011). The Mindful Judge tells us of ten additional judges involved with mindful or contemplative practice.

Law firms that have adopted mindfulness programs include Boston’s Hale & Dorr, Boston’s Nutter, McClennan & Fish, and Minneapolis’s Leonard, Street and Deinard. (Cutting Edge Law.)

The District of Columbia Bar’s March 2015 magazine found mindfulness for lawyers important enough to make the story a cover article, in which I am quoted. Here is law professor Leonard Riskin’s scholarly article on mindfulness and the law.

As to the rest of American society, such large American corporations as the following have mindfulness programs available to employees: Google, Apple, Procter & Gamble, General Mills, and Aetna. Drew Hanson, “A Guide to Mindfulness at Work,” Forbes Online (Oct. 31, 2012).

My original packet seeking CLE credit includes the certificates showing that the program was pre-approved for CLE credits in New York, which is another example of the mainstreaming of mindfulness in the law. This program’s quality was all the more enhanced by the leadership and teachings of Charles Halpern (who was among the three CLE presenters) and leading meditation teacher Norman Fischer (also among the three CLE presenters).

The three hours of CLE presentations are now available online free via audio links here.

I hope that the Virginia Bar will reverse its denial of my requested three CLE credits for the Mindful Lawyering program.


Jonathan L. Katz