| all of the exemptions from the MCLE program may be questioned as a matter
of policy," wrote Chief Justice Ronald M. George, "the challenged exemptions may
not be found unconstitutional." The MCLE program was challenged by retired attorney
Lew Warden, now 79, who lost his license in 1993 for failing to complete his MCLE
requirements. He argued that the program violates his fundamental right to practice and
that the exemptions for five groups of attorneys violate the equal protection clause of
the constitution.
The First District Court of Appeal agreed, ruling in 1997 that there is no rational
basis for the exemptions.
But the high court found that the exemptions actually meet the rational basis test
because those who are exempt are less likely to represent significant numbers of clients
on a full-time basis.
"Although some individuals within each of these [exempted] classes may be in as
much need of MCLE courses as other attorneys," George wrote, "the exemptions in
question cannot properly be found to be irrational or arbitrary under the traditional
deferential standard."
Justices Joyce Kennard and Janice Rogers Brown dissented. Kennard said clients of
part-time lawyers need just as much protection as those who hire full-time attorneys.
"Try to imagine a law that exempts from professional competency requirements those
surgeons who operate on only a few patients each year," Kennard wrote, "or those
commercial pilots who make only a few flights, or those engineers or contractors who build
only a few high-rise buildings or freeway overpasses.
"The very idea is ridiculous."
The ruling notwithstanding, the MCLE program has drawn heavy criticism over the years
for the questionable content of some courses, the perception that they are simply
money-makers for providers, and widespread unhappiness with what some critics call the
"sex, drugs, and rock'n'roll" special requirements.
Two out of three attorneys who responded to a recent California Bar Journal survey said
they believe MCLE should not be mandatory, although many also said that even without a
requirement they would continue to educate themselves in the interest of professionalism.
There was widespread opposition to the special requirements and the exemptions.
Bar leaders were predictably pleased with the court's ruling, but also showed no
interest in punishing the thousands of attorneys who have put off taking courses while
awaiting the court's ruling.
"MCLE is probably a good thing and we probably need to do it," said newly
elected President Andrew J. Guilford. "But we need to be cautious and make it
painless." |
