State Bar to appeal ruling which strikes down MCLE 

Staff Writer 

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Bar officials made clear that since the ruling is not final, the MCLE program will remain in operation and will continue to be monitored. "Members are advised to continue to comply with the MCLE requirements or risk being put on inactive status," said Karen Betzner, senior executive for the MCLE program.

The board acted following a decision by the First District Court of Appeal that the MCLE program "violates the equal protection rights of members of the bar who are not exempted" from it.

The three-member appellate panel found the entire MCLE statute (Business & Professions Code §6070) unconstitutional, as well as rule 958 of the California Rules of Court, adopted by the state Supreme Court.

There is no rational basis, the court said, for exemptions for retired judges, full-time professors at accredited law schools, and officers and elected officials of the state.

The ruling

"All of these exempted persons may represent individual clients in private practice without complying with the CLE requirements," wrote Justice J. Clinton Peterson. "The fact that a lawyer wins an election or is appointed to a state office does not mean that the lawyer is necessarily current in recent legal developments, well versed in legal ethics, or an expert in law office management.

"If a state officer or elected official, a retired judge, or a law professor represents individual clients in private practice, the same legitimate state interests of the public protection of such clients apply; yet these lawyers, without any ascertainable rational basis, are not required to comply with the CLE requirements which their opponents must fulfill."

Peterson and Judge W. Scott Snowden held that the entire program is unconstitutional.

Because the legislature rejected a "no exemption" approach when the MCLE statute was adopted in 1989, there is no reason to believe lawmakers would now reverse that stance, said the majority. "The legislature, in our view, will more likely prefer invalidation of section 6070, allowing it to start anew and initiate comprehensive legislative reform of CLE, rather than accept a judicial reformation . . ." Peterson wrote.

But Justice Paul Haerle favored simply excising the exemptions, arguing that declaring the entire continuing education statute unconstitutional "throws the baby out with the proverbial bathwater."

Haerle noted that the legislature approved the bar-supported statute quickly and overwhelmingly, and only a few hundred attorneys benefit from the exemptions. "These factors . . . suggest rather strongly to me that our legislature would much prefer excising the offending exemptions to invalidating the entire statute," he wrote.

Thirty-one members of the legislature are attorneys; 11 in the Senate and 20 in the Assembly.

Filed in 1993

The suit was filed in 1993 by Lew Warden, a San Leandro sole practitioner who was placed on inactive status when he did not complete the required hours and protested the constitutionality of the MCLE requirements. An Alameda Superior Court judge upheld the program.

The appellate decision ordered Warden reinstated to practice. The bar argued that the MCLE program is constitutional and that there is a rational basis for the exemptions.

One other suit challenging MCLE is pending. Assigned to the same court of appeal division, it challenges the constitutionality of the regulations dealing with law practice management, ethics, substance abuse and bias. The suit argues the requirements violate free speech, free association and privacy rights.

The MCLE program requires all active attorneys to complete 36 hours of legal education over a three-year period. The requirement includes four hours of ethics instruction, four more hours in either ethics or law practice management, and one hour each in bias and substance abuse. Eighteen hours of classes may be self-study.

The continuing education program created a profitable industry, although bar officials have no actual revenue figures. The bar currently certifies 1,138 MCLE providers.

Compliance is based on the honor system. As of last month, 685 lawyers were on inactive status because they have not completed the required courses. The bar Board of Governors has the power to lift the licenses of non-complying attorneys without a hearing, and between 280 and 300 lawyers are de-activated every July. About one-third remain inactive while the rest come into compliance, bar officials said.

Critics of MCLE argue that the program is a waste of lawyers' time and money. Many have pointed out that hours can be earned on ski slopes and cruise ships, calling into question the seriousness of some courses.

Financial implications

Elimination of the MCLE program could have significant economic implications. While saving attorneys hundreds of dollars, it could cost providers millions. California Bar Journal is a provider, offering a monthly self-study test with one hour of credit. Between January 1994 and February 1997, it received more than 40,000 self-study tests, primarily from solo or small firm practitioners. In addition, providers buy substantial advertising each year.

The MCLE program was created after former Sen. Ed Davis introduced a measure in 1989 which imposed continuing education requirements on all California lawyers. By the time it was signed by the governor, it contained exemptions for law professors, retired judges, state attorneys and elected California officials.

Legislative action

The legislation directed the bar to submit a rule of court providing for an MCLE program to the Supreme Court, which added the exemption for federal attorneys.

The appellate decision notes that nothing in the legislative history shows any rational basis for three of the five exemptions. The exemptions for state and federal attorneys were not invalidated.

Indeed, wrote Peterson, the exemption for legislators was added when lawmakers who "didn't want to be dragged into a classroom" indicated they would oppose the bill.

Similarly, he wrote, opposition by retired judges and law professors led to exemptions for those groups.

"Appellant and presumably numerous other attorneys also do not want to be 'dragged into a classroom,' so this is not a rational basis upon which to distinguish between appellant and exempted lawyers," Peterson added.