REGULARS

OPINION

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 wishful thinking.

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.