The California State Bar has been quite busy lately. In its most recent activity, the Board of Governors’ Admissions and Education Committee voted to move a plan forward to increase the number of hours of Mandatory Continuing Legal Education (MCLE) that active attorneys must complete. According to the agenda item:
“Ensuring initial and continuing competence in the attorneys that are licensed by the State Bar is a primary objective of the Board of Trustees and one action that could be taken toward meeting that goal is to expand the MCLE requirements.”
The following proposed changes are currently out for public comment:
- Increase the number of required MCLE hours from 25 to 36 per three-year compliance period.
- Of the 36 hours, require that at least 12 be relevant to an attorney’s practice area.
- Increase the maximum number of “self-study” hours from 12.5 to 18.
Other states have taken similar steps. If California moves to a requirement of (on average) 12 hours per year, we will be in good company. Compared to continuing education requirements among major professions in California, lawyers are far behind CPAs, physicians, and dentists.
You may recall that when the MCLE program was instituted in 1992, the requirement was 36 hours., but was reduced in 1999 as a part of the aftermath of the lawsuit by the Pacific Legal Foundation (which accused the State Bar of a literal bias, among others). The shift was intended to address vocalization from attorneys about “vacuousness” of some MCLE courses, and the high cost of compliance.
A focus on public protection
The State Bar’s move comes as part of their renewed focus on public protection. Some mandatory bar associations across the country view themselves primarily as an industry group, whose mission is to represent and protect its members. California’s State Bar has taken that approach in the past, or at least included attorneys within the groups it was charged with protecting. Recently, however, the State Bar has shifted to de-emphasize protecting attorneys, and focus instead protecting the public from attorneys.
It is possible that the origin of this shift is purely idealistic. Certainly, there are an unfortunate number of slippery attorneys who victimize the elderly, the young and the vulnerable. In addition, to the extent that public protection can be interpreted to include extending access to justice for all Californians, and not just the wealthy ones, this mission has long been a key part of the State Bar’s focus.
Or, it could be that the shift’s origin is purely political. The Legislature has granted the State Bar (and our profession) a monopoly – something regarded with suspicion in our democratic and free market society. The Legislature is not always comfortable with the monopoly, and perhaps never more so than now, when the number of attorneys in the Assembly and Senate is at an all-time low. When the Legislature is not happy, it tends to express its unhappiness when the State Bar’s fee bill comes up each year – and the State Bar can ill afford to risk that.
Or, finally, it could be a creature of public relations. As you probably know, the Board of Governors fired the State Bar CEO, former Senator Joe Dunn, last fall, and Dunn filed suit against the State Bar mere hours later. Dunn claims that he is a whistleblower, who was trying to call the Board’s attention to falsification of records about attorney discipline. While the State Bar has roundly dismissed this claim, the mud slinging has continued in the legal press. (Dunn’s most recent salvo was to add Beth Jay, former principal attorney to the Chief Justice of the California Supreme Court, to his lawsuit; the State Bar’s move has been to try to force Dunn into arbitration, a request granted by the court late on Friday June 12th.) Surely this would be a good time to take steps to reassure the public, the legal community and the Legislature that the State Bar is, in fact, completely on top of ensuring that only competent attorneys are permitted to practice.
Most likely, of course, the State Bar’s new articulation of its public protection mission is all three of those things: idealistic, practical, and public relations-focused.
What will it mean for all of us?
Well, obviously, we’ll need to increase the number of MCLE hours we accumulate. But truly, the burden is not so great, and the policy reason is compelling. Even for those attorneys with a long and storied career in a particular area, who are considered leaders in that area – even those attorneys need to be sure that they are staying on top of new developments, and related areas. And for the rest of us, we can always learn more. And after all, we had a 36 hour requirement for many years.
The trickier part of this new rule, I think, will be the proposed rule that 12 of your 36 hours must be “in your area of practice.” The way the rule is written, it will be up to the attorney to make the case to an auditor that they have met the practice area burden. What if an attorney is exploring a possible new practice area? Or is simply interested in learning more? Is there really data that indicates that a significant number of attorneys attended MCLE’s with no possible relation to their practice? One would think that with the recent random MCLE audits the State bar would have data on this. Or is the proposal solving a problem that doesn’t exist? At a minimum we need more information on this piece of the proposal.
Comment on the proposed changes
You still have time to get your voice heard. The public comment period will be open until June 26, 2015. For more information, and to send comments on the proposed changes, please click here. Following public comment, the Board will need to vote again to approve, and changes will need to be made to the Business and Professions Code, the Rule of Court, and the Rules of the State Bar.
Where do you stand? Let us – and the State Bar – know!
Tiela Chalmers is the CEO of the Alameda County Bar Association and on the Board of Director for the Volunteer Legal Services Corporation. Tiela has been a consultant in the fields of legal services and pro bono, handling projects including coordinating the Shriver Housing Project in Los Angeles, the largest of the “civil Gideon” pilot projects in California, and working with the ABA and a national working group on updating the Pro Bono Standards. Previously the Executive Director of Volunteer Legal Services Program in San Francisco, Tiela worked at VLSP for many years with Tanya Neiman until her death. Prior to VLSP, Tiela was an attorney at Farella, Braun + Martel in San Francisco.