In the past two years, California has embarked on a mission to ensure all lawyers are complying with their MCLE requirements. Why the sudden interest in making sure lawyers really do take classes? Well, like with a lot of disciplinary problems, it was found out pretty much by accident.
The State Bar is audited by an independent board on a number of its activities, including discipline and admissions, to see if lawyers can actually govern themselves. In 2011, MCLE compliance was audited and that evaluation confirmed the need for the State Bar to randomly inspect compliance with MCLE obligations. Then-State Bar President Jon Streeter stated that the audit of 635 lawyers revealed that only 539 provided the necessary documentation to demonstrate full compliance. The rest either could show no compliance or had minor reporting deficiencies.
I think the results were a surprise to the State Bar; they assumed lawyers would want to keep up with current developments in their practice areas. According to Streeter, of the 96 lawyers who could not prove compliance, five were suspended from practice due to their inability to show any compliance at all; the ones with only minor reporting deficiencies received a cautionary letter from the State Bar. Approximately 25 of those with minor deficiencies were sent to the Office of Chief Trial Counsel for disciplinary action.
In 2012, 5 percent of the enrolled attorneys were randomly audited (or roughly 3,000-4,000 lawyers), and Streeter said that the goal in 2013 was to check on 10 percent of the attorneys. In the coming years the State Bar plans to audit even more.
Is it time to automate compliance monitoring? Contra Costa Lawyer co-editor Harvey Sohnen asked this author to opine on what alternatives to the current monitoring system might be feasible. For example, what about taking this away from the prosecutors, and instead furnish MCLE providers with barcodes, have all attorneys submit a copy of their compliance forms for scanning, and have an administrative sanction for non-compliance such as a fine or temporary change of status until the deficiency is corrected? This might save on Bar staff wages and benefits, and monitor all those subject to MCLE, instead of a sample. The author responds to this idea that new technology would be expensive to implement and that with rising fixed costs, she doesn’t see this as a Bar priority.
MCLE is required in most states, but not in all jurisdictions; the District of Columbia recommends but does not require lawyers to participate in MCLE activities. Wikipedia states that Kentucky is unique in that it allows all licensed attorneys to complete their annual education requirement without a registration fee through a two-day program known as Kentucky Law Update, offered annually in seven locations throughout the state. To this author, that sounds like the very best way to ensure lawyers comply.
In California, we have a long history of fighting MCLE compliance rules. We are either mavericks or recalcitrants, but unlike bars in most states, we believed that lawyers would want to comply with a duty to learn more about their practice areas without Bar intervention so that they would avoid a legal malpractice suit. In fact, we claimed that MCLE requirements were unconstitutional, but in 1999, the California Supreme Court upheld MCLE despite Equal Protection Clause constitutional allegations.
We were actually one of the last states to adopt MCLE requirements. They say that when you let the camel’s nose into the tent, he eventually takes over and begins to live in the tent. The same could be true of MCLE in this state. Once it was found to be legal, questions arose as to what courses could a lawyer take, and which ones should a lawyer be required to take. Lawyers were once required to take a unit in law practice management and technology, but that was eliminated when it became clear to Bar officials that a lot of the courses offered were in areas such as business development versus handling trust accounts and the like.
Currently, lawyers are required to take 25 hours of classes in just about anything they want as long as the class is by an MCLE-approved provider. Four of those units must be in legal ethics, one in substance abuse and one in the elimination of bias. You can self-study to obtain your units for a maximum of 12.5 units. Those of you who teach as adjuncts or visiting lecturers can claim 12 credits for each one unit of class. So if you teach a three-unit class, you can claim 36 hours. It is a nice bonus, since adjunct teaching even at a top 10 law school does not pay very well. At a U.C. school, you also get certain retirement plan benefits for adjunct teaching. And it pays to be a state or federally employed lawyer or an elected official; they are exempt. Yeah, but that is no big surprise, since the legislature votes on exemptions and they are lawyers.
If a lawyer admits to the State Bar that she has not fully complied, it won’t be the best thing that has ever happened in her career, but not the worst either; she could be fined $75 with a letter telling her to complete the units. But if you check the box that you have complied when you know you have not, you have real trouble. That is lying, and involves moral turpitude, giving the State Bar a basis to suspend you from practice.
So it is key for a lawyer to keep compliance forms given out at MCLE events. This author keeps them in hard copy back to 2000 and also makes sure to sign in at each event. It is not the Bar’s job to keep records of your attendance; you have to do that. It is easy to forget the name of a program and when and where it was offered. The people who are putting on the program have a provider number which you will need to know and will surely forget after a year or two.
To find out how many hours you need by when, go to http://calbar.ca.gov/Home.aspx and click on “My State Bar Profile.” Under the “Report MCLE” section of the page, follow the instructions for finding out how many credits you need. Or call the Member Services Center at 1-888-800-3400. Requirement modifications are available for attorneys with serious medical issues or military deployment.
As Streeter says: “The message is clear. California lawyers must fulfill and accurately document and report their MCLE requirements. No California attorney should be surprised if their compliance certificate is audited.”
CCCBA can also help track your MCLE credits! Log onto your member profile to access your Attendance Certificates (choose “My Past Events”).”
Carol M. Langford is an attorney specializing in defending attorneys before the State Bar of California. She also handles State Bar admission matters. She is a lecturer in law at U.C. Berkeley, Boalt Hall School of Law.