|State Bar President Ray Marshall has recommended "the creation of a
[State Bar] commission to review MCLE in California and propose changes to address the
concerns of our members." The commission will be asked to consider possible
modification of the present program, but outright abolition will not be an option. If that
is what the board of governors decides, they have learned nothing from the last bar
plebiscite on the future of the State Bar or Gov. Pete Wilson's veto of the State Bar dues
Until a fair and impartial MCLE reform commission has carefully evaluated the
effectiveness of the present program, conducted statewide hearings to consider the
opinions of legal education experts and a cross-section of attorneys who are not members
of the State Bar establishment, and fairly balanced the alleged benefits to the public
against the burdens on attorneys, it is premature and inappropriate for Mr. Marshall to
make a pronouncement that "the MCLE program is an important component of the bar's
public protection mission and should not be eliminated."
As I recall, mandatory continuing legal education was the result of legislation
sponsored by a former Los Angeles police chief when he was a state senator because he
thought that attorneys should be subject to the same continuing education requirements as
real estate brokers. Attorneys are not the same as real estate brokers. They are members
of a learned profession and all but a few are sufficiently self-motivated to keep abreast
of changes in the law without prodding from a bar nanny in San Francisco.
I have serious
doubts about the need for MCLE and its effectiveness as a consumer protection program. The
consumer is adequately protected without it. An attorney who fails to act competently may
violate Rule 3-110 of the Rules of Professional Conduct and is subject to discipline. If a
client is damaged by professional incompetence, the attorney can be sued in a civil
malpractice action. If an attorney is not well-prepared, he or she risks incurring the
wrath of a judge, ignominious defeat and the loss of client confidence. Moreover, the
recent report of the state Senate Judiciary Committee on SB 144 has found that "more
than the amount of dues, State Bar members complain of the vacuousness of certain MCLE
courses and the high costs of compliance." I agree with Mr. Marshall that "it's
time to modify MCLE" and commend him for proposing the creation of a reform
commission. However, it may also be time to consider MCLE's abolition.
If abolition is rejected, MCLE should be reformed by limiting it to specific categories
of attorneys who present the greatest risk of harm to the public. The first category might
consist of attorneys who have been admitted to the bar for less than two years. MCLE for
that group can be justified as a "bridging the gap" program which could be
provided by the State Bar or local bar associations without cost to the participants.
A second category might be limited to attorneys who have violated Rule 3-110 and been
ordered by the State Bar Court to complete MCLE as a condition of probation. All other
attorneys would be exempt from MCLE. A case can be made that those classifications are
reasonable for equal protection purposes and would pass constitutional muster.
While I applaud the thoughtful and conscientious efforts of Sen. Adam B. Schiff to
reform the State Bar in his proposed legislation (SB 144), the modest MCLE changes in his
bill are insufficient and premature. I disagree with Mr. Marshall's assessment that SB 144
"really addresses all the issues and concerns which have been raised over the last
two years regarding the bar being more streamlined and responsive." That is mere
Although enactment of the MCLE provisions of SB 144 at this time would be welcome as
stopgap relief from MCLE oppression, it may be wise to delete them from the pending bill
so as not to prejudice more comprehensive reform after a fair and impartial MCLE reform
commission has completed its work.
Indeed, the creation of such a commission may be pointless if they are enacted.
Andrew Castellano is in private practice in
South Pasadena as an international lawyer and foreign law reform consultant.