California Bar Journal
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MCLE upheld
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Court, although he admitted his odds of success are “not very good.”

Said bar attorney Dina Goldman, “We’re happy the court resolved the matter in our favor and happy this long-standing litigation is resolved.”

Although the Supreme Court did not address First Amendment concerns in the Warden decision, the appeals panel concluded that the high court “implicitly rejected” such a challenge by finding that the MCLE requirements are “rationally related” to the needs of the legal profession and to consumer protection.

The justices rejected Greenberg’s argument that classes in elimination of bias, substance abuse and stress reduction amount to “compulsory governmental propaganda.”

“While we recognize appellants’ desire to avoid exposure to what they perceive to be a well-intentioned, but sometimes patronizing, condescending, and inept educational agenda,” Stevens wrote, “we also recognize that a majority of the members of our Supreme Court voted in Warden to impose the requirements of the State Bar’s MCLE program of continuing legal education classes on the vast majority of California’s practicing lawyers. We are bound by that ruling.”

The classes targeted by Greenberg as violations of the First Amendment are in fact germane and “rationally related” to the practice of law and to consumer protection, the panel found. Passive exposure to those classes does not force attorneys to accept any political agendas, the justices said.

In fact, Stevens wrote, “the prevention of substance abuse and emotional illness or stress among lawyers would, if accomplished, constitute a worthy endeavor, which could spare clients from the obvious harms attendant on substance abuse or emotional illness among lawyers representing members of the public.

“Further, the elimination of bias in representation and decision making, where improperly based on irrelevant personal characteristics, has long been a goal of the legal profession and is germane and rationally related to the special nature of law practice and the consumer protection goals of the MCLE program.”

Stevens was joined by Justices Barbara Jones and Paul Haerle. Haerle was a member of the panel that issued the Warden decision throwing out the MCLE program on equal protection grounds.

He partially dissented, arguing that instead of abolishing the entire MCLE program, the exemptions for retired judges, law professors and elected state officials should be eliminated.