Supreme Court to hear State Bar's appeal
of MCLE ruling

by Nancy McCarthy
Staff Writer

Although the California Supreme Court probably will not decide the fate of the State Bar's continuing legal education program (MCLE) before the end of the year, attorneys were advised last month of their "continuing obligations."

"Some temporary timing adjustments to the current compliance periods may be necessary should the Supreme Court ultimately uphold the program in whole or in part," wrote president Tom Stolpman in a letter to active bar members.

The court agreed June 5 to review an appellate court ruling that struck down the MCLE program as unconstitutional. By a unanimous 9-0 vote, the court accepted the bar's petition for review.

The bar had sought review of the March 13 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."

Retired judges, full-time professors at accredited law schools, and officers and elected officials of the state are exempt from MCLE requirements.

The bar's board of governors voted at its May meeting that the approximately 1,800 attorneys who have not complied with the MCLE requirement should not be placed on administrative inactive status until the high court makes its ruling. At the same time, the board underscored its support for the MCLE program and urged attorneys to continue to take classes.

In seeking review by the Supreme Court, bar attorneys argued that the three-judge appellate panel erred by applying a "heightened scrutiny" test to the program and by concluding that the legislature would not have created MCLE without the exemption for its members.

The bar also contended that the court should have deleted the exemptions rather than throw out the entire program.

Bar general counsel Diane Yu had requested an expedited review of Warden v. State Bar of California because the appellate ruling "immediately cast a cloud of uncertainty over more than 100,000 California attorneys."

The Supreme Court will not hear oral argument in the case before the fall and, once the matter is submitted, must rule within 90 days.

The MCLE program, which requires active California attorneys to complete 36 hours of education over a three-year period, has remained intact since the March 13 ruling.

The appellate court said there was no rational basis for the exemptions. "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."

Peterson and Judge W. Scott Snowden held that the entire program is unconstitutional, but Justice Paul Haerle favored simply excising the exemptions.

When the bill to create the MCLE program was introduced in 1989, it contained no exemptions. However, as it made its way through the legislature, four categories of exemptions were added and the Supreme Court added a fifth. The appellate court did not invalidate exemptions for state and federal attorneys.

Cooper, White & Cooper attorneys James Wagstaffe and Mark Tuft are assisting the bar's general counsel in the appeal on a pro bono basis.