California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - FEBRUARY 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - February 2000
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News Briefs
Appeal court denies bar's petition to reverse Brosterhous
Fee bill introduced
Bar fee arb program gears up
David Bryson, Loren Miller recipient, dies at 58
Board to name one to Judicial Council
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You Need to Know
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Opinion
From the President - For our system to work, we need to be involved
Let's let public lawyers take a seat at the table
The illusion of a cosmetic fix
Letters to the Editor
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MCLE Self-Study
The Supreme Court and the ADA
Self-Assessment Test
MCLE Calendar of Events
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Appointments
Access commission seeks members for 2 positions
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
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Discipline
Ethics Byte - 'Rampant' conflicts in a new economy
Attorney suspected of soliciting murder of bar prosecutor
Attorney Discipline
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Legal Tech - If the hype is right, ASPs are H-O-T
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Public Comment
MCLE challenge
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Continued from Page 1
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fession and consumer protection.”

Greenberg was questioned closely about the Supreme Court’s 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. “Isn’t that a pertinent point we have to bear in mind?” he asked Greenberg.

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 “there’s no reason for people to attend these classes.”

“Isn’t the purpose to head that (discipline) off at the pass?” asked Justice Lawrence Stevens, adding, “You’re not being placed in handcuffs and led into a classroom.”

Greenberg agreed that handcuffs are not used, “but you are being ordered to do it.”

The MCLE 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 bar’s fee bill and reducing the number of required hours from 36 to 25 over a three-year period.

Commission study

Former bar 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 bar’s board of governors also revised the compliance deadlines for attorneys to fulfill their requirements.

In the 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.

Greenberg 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 state’s 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.

Further, those 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.

She also 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.

Clear relationship

In papers 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.

The bar’s 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.

“The 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 Bar’s permissible goals.”