California Bar Journal
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Supreme Court hears bar's appeal to MCLE ruling
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Justice J. Clinton Peterson noted that all the exempted individuals may represent clients without complying with CLE requirements. ". . . Yet these lawyers, without any ascertainable rational basis, are not required to comply with the CLE requirements which their opponents must fulfill," Peterson wrote.

But bar attorney James Wagstaffe argued that as long as there is a rational basis for each exemption, they pass constitutional muster.

"This rule governs the vast majority of lawyers in California," Wagstaffe said. "There may be some inequities, some imprecision. But if there is any conceivable rational basis, then the exemption passes the test."

Justices Stanley Mosk and Kathryn Mickle Werdegar asked whether the court should toss the entire program or simply excise offending exemptions if it finds any. Werdegar further questioned whether the court is required to find a rational basis for every exemption and compare lawyer exemptions with those offered in other professions.

Wagstaffe answered that no comparisons should be made and any offending exemptions could be excised from the program. He also told the justices that they "have the inherent authority in [their] rule-making powers to exempt anyone."

Justice Joyce Kennard addressed the issue of law school professors who remain exempt even if they represent a few clients. Suggesting a comparison to other professions, she asked if engineers who only build a few bridges or pilots who only fly occasionally should be free of continuing education requirements imposed on their colleagues.

Wagstaffe said a rational basis for such exemptions is conceivable, suggesting that pilots who teach other pilots to fly might be similar to exempt law professors, who presumably are current in the law because they are teachers.

Warden, however, argued that attorneys in the exempted classes are no more "endowed with knowledge than the rest of us. Why shouldn't they be exposed to the same standards as the rest of us?"

He chastised the justices for not taking responsibility for a rule of their own making, complained that attorneys - like him - can be suspended for non-compliance without a hearing, and charged that the MCLE program is shot through with defects.

"This is the court's rule, not the legislature's," he said. "I don't know why the court can't accept responsibility for it."

Warden accused the bar of making a power play in the legislature, at one point mentioning a former lobbyist's $450,000 annual fee, even though that controversial contract was reached years after the MCLE program was enacted.

Twice he told the justices, "Maybe I'm wrong," after making his arguments.

The MCLE program has its roots in SB 905, sponsored by the State Bar and authored by then-Sen. Ed Davis, R-Northridge, which was signed into law in 1989. The Supreme Court adopted Rule of Court 958, and the bar's board of governors adopted rules and regulations governing the program, which became effective in 1992.

The legislature exempted retired judges, full-time law professors, and state attorneys and elected officials. The court added lawyers for the federal government.

Warden filed suit in Alameda County Superior Court in 1994, after he was placed on administrative inactive status for not completing his MCLE hours. He appealed after the court dismissed the case.

In its 2-1 ruling, the court of appeal said it found nothing in MCLE's legislative history demonstrating any rational basis for three of the five exemptions. It did not invalidate exemptions for state and federal attorneys.

"Indeed," wrote Justice Peterson, the exemption for legislators was added when lawmakers who "didn't want to be dragged into a classroom" indicated they would oppose SB 905.

Similarly, he wrote, opposition from 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 wrote.

In its brief, the bar argued that there are at least two conceivable justifications for the exemptions. First, law professors, retired judges and legislators generally are less likely as a group to represent clients and therefore are less in need of MCLE than other attorneys.

Second, "it is reasonable to assume that the exempted classes may be better trained and experienced as a group, and thus, less in need of MCLE," the bar argued.

Justice Kennard was the only member of the court to question the content of MCLE programs, which has been a target of frequent criticism. "It can include a trip to the wine country" where attorneys can "sip wine and reduce stress," she said pointedly. Wagstaffe said stricter supervision of content is the proper solution to such problems rather than dumping the entire program.

Warden said after the hearing that although he sensed some receptiveness to his arguments by the court, "there seems to be pressure to keep the program intact." He added that he believes the bar considers the case a simple nuisance.

Wagstaffe, who teaches constitutional law at Hastings College of the Law, was more optimistic, and said he felt the justices "had a good grasp of the rational basis case."

MCLE compliance has not been strictly enforced since the 1997 decision, although the bar's board of governors urged the state's lawyers to fulfill their requirements. Compliance director Kris Krobot said no one has been placed on inactive status for failure to comply since the decision.

She said 56 percent of the attorneys in compliance group 1 (last names A-G), whose compliance period ended in 1998, reported completion of their requirements. Only 27 percent of the next group (last names N-Z), whose compliance period ended in February, complied.

Those figures compare with a 97 percent compliance rate for 1997, just before the appellate ruling was issued.

The Supreme Court must rule within 90 days.

The bar is represented pro bono by Cooper White & Cooper of San Francisco.