fession and consumer protection.
questioned closely about the Supreme Courts ruling last year in Warden v. State Bar,
which upheld MCLE exemptions for retired judges, law professors and elected state
officials. The decision also found the MCLE program rationally germane to the needs
of the legal profession, said Justice Paul Haerle. Isnt that a pertinent
point we have to bear in mind? he asked Greenberg.
argued that attorneys who find themselves in the discipline system because of behavior
resulting from bias, stress or substance abuse could be required to take courses in those
areas because they are germane to their professionalism, but otherwise theres
no reason for people to attend these classes.
the purpose to head that (discipline) off at the pass? asked Justice Lawrence
Stevens, adding, Youre not being placed in handcuffs and led into a classroom.
agreed that handcuffs are not used, but you are being ordered to do it.
program has undergone significant changes since Greenberg filed his action almost 10 years
ago. In addition to the Warden ruling, the legislature ordered revisions to the program
last year, eliminating the exemption for retired judges in the bars fee bill and
reducing the number of required hours from 36 to 25 over a three-year period.
president Raymond Marshall appointed a commission to examine the entire program, and the
12-member panel is expected to make a series of recommendations later this year.
In the face of
uncertainty over the program, the bars board of governors also revised the
compliance deadlines for attorneys to fulfill their requirements.
Greenberg case, Alameda County Superior Court Judge Sandra L. Margulies granted summary
judgment for the bar in January 1996; Greenberg appealed her ruling in March 1996.
argued that the special requirements violate attorneys First Amendment rights
because the bar does not have the right to propagandize, inculcate or educate
anyone on matters not germane to the practice of law. . . . The right in question,
he wrote in his appeal, is the right to be left alone in silence, far from the
spir-itual cacophony of the states bust-ling and mutable sense of urgency.
The bar argued
that the continuing education program, requiring only two hours of instruction in the
challenged subjects over a three-year period, does not significantly impair
the plaintiffs First Amendment rights.
taking the courses are free to disagree with any material they might hear or read, and
attorneys are not required to subscribe to a particular belief about bias, stress or
chemical abuse, Goldman said.
contended that all three subjects are germane to the practice of law. The connection
between improving the quality of legal services and classes aimed at assisting attorneys
in dealing with stress and substance abuse or at preventing bias from negatively impacting
the justice system is obvious and self-evident, Goldman said.
submitted to the court, Goldman argued that there is a clear relationship between classes
in prevention, detection and treatment of substance abuse and emotional distress and
attempts to improve the quality of legal services in California.
discipline staff estimates that chemical dependency and/or emotional distress play a role
in as many as 60 percent of attorney discipline cases, often resulting in harm to clients.
challenged MCLE requirements properly attempt to prevent harm to clients in the first
instance, bar lawyers wrote. The requirements are minimally intrusive and
reasonably related to the State Bars permissible goals.