September 2014 | Earn one hour of MCLE Credit in Legal Ethics
California’s MCLE requirements: Complying with the rules and your ethical obligations
Failing to comply with California’s Minimum Continuing Legal Education (MCLE) requirements has ethical and disciplinary implications for lawyers. It is critical that lawyers understand and meet their obligations, and thereby avoid the risk of adverse disciplinary consequences.
The MCLE requirements are set forth in State Bar Rule 2.72. Attorneys are required to complete 25 hours of approved MCLE every three years. At least one half of that amount must be through activities approved for “participatory” credit; self-study activities can be credited only up to 12.5 hours of the 25 credit hours. “Participatory” activities are defined as ones in which the MCLE provider must verify attendance. (Rule 2.51(F)) Of the 25 credit hours, four hours must be in legal ethics, one hour must be in Prevention/Detection/Treatment of Substance Abuse or Mental Illness/Attorney Competence, and one hour must be in Elimination of Bias in the Legal Profession and Society.
If an attorney is inactive or exempt for any amount of time during a three-year compliance period, he or she is required to complete MCLE only in proportion to the amount of time he or she was subject to the requirement. Certain lawyers are exempt from MCLE requirements, including elected officials of the State of California, full time professors at accredited law schools, administrative law judges, and certain attorneys employed by the State of California or the federal government. (Rule 2.54)
At the end of each compliance period, every attorney must report compliance to the State Bar through their State Bar Profile (accessed through the State Bar website). Attorneys may report their compliance starting two months before their compliance deadline. The next group of attorneys due to report compliance are those with last names beginning with H-M, with a reporting deadline of Feb. 2, 2015.
Rule 2.90 defines “noncompliance” as the failure to: (A) complete the required education during the compliance period; (B) report compliance or claim exemption from the requirements; (C) keep a record of MCLE compliance; or (D) pay fees for noncompliance. Rule 2.91 provides that a member who receives a notice of noncompliance must comply with its terms or be involuntarily enrolled as inactive. Rule 2.93 provides that inactive enrollment for MCLE noncompliance terminates when the member submits proof of compliance and pays the noncompliance fees.
An attorney who is prevented from fulfilling the MCLE requirements for “a substantial part of a compliance period” because of a physical or mental condition, natural disaster, family emergency or other conditions may apply to the State Bar for modification of the MCLE requirements. Rule 2.55.
Activities that qualify for MCLE credit
The MCLE requirements may be satisfied only through approved education activities. The MCLE activity must “relate to legal subjects directly relevant to members of the State Bar or have significant current professional and practical content.” (Rule 2.52(A)) MCLE presenters must have significant professional or academic experience related to the contents of the presentation. (Rule 2.52(B))
“Participatory” credits may be earned through both in-person attendance and, in some cases, reviewing programs online or through recordings. Providers must be approved by the State Bar, and must keep attendance lists for attendees. The provider will also issue attendance certificates to attendees. Self-study credits may be earned through approved self-assessment tests (such as that accompanying this article) (Rule 2.93), as well as attending or teaching law school classes, or speaking at MCLE presentations. (Rule 2.82) Additionally, writing published legal materials may qualify for self-study credit, as long as the written materials contribute to the legal education of the attorney author, were not prepared in the ordinary course of the author’s practice, and were not prepared to accompany an MCLE presentation. Lastly, attorneys may earn self-study credit by completing approved MCLE activities for which attendance is not verified by a provider, as long as the MCLE activities were prepared within the past five years. (Rule 2.83(A)) Certain MCLE activities taken while out of California may qualify for credit if they meet the requirements of the rules. (Rule 2.85)
No MCLE credit may be earned for preparing for or taking the bar exam or the multistate Professional Responsibility Exam. (Rule 2.87) Other activities that do not qualify for credit include speaking on a legal subject to non-attorneys; attending programs that concern how attorneys may market their business or increase profits; serving on a jury; grading the California bar exam; participating in informal discussion groups or chat rooms; acting as a judge pro tem or settlement judge; providing pro bono services; self-review of legal materials that have not been pre-approved for MCLE credit; and reviewing or evaluating the legal work of others.
For the first years in which the MCLE requirements were operative, the California bar only conducted informal small-scale reviews or audits of compliance information that lawyers submitted. In 2011, the State Bar conducted an audit of 635 members, and the number of lawyers audited has risen each year since then. In 2013, the State Bar audited 4,700 lawyers, and will audit 5,500 attorneys this year.
If audited, an attorney must submit detailed information about the MCLE credits claimed, including information about each presentation attended, and all self-study completed. The attorney must also submit copies of all MCLE attendance certificates. Attorneys are required to “make up” any missing hours. Failure to do so or to submit a complete audit will result in the inability to practice law until the problem is corrected. Since 2011, 53 attorneys have been transferred to Involuntary Inactive Status due to the audit.
If an attorney’s response to the audit reveals discrepancies in the records submitted, a shortage of MCLE credit hours, or other problems, the matter may result in referral to the Office of the Chief Trial Counsel, and potentially, an investigation that could result in possible disciplinary proceedings. All California lawyers have a duty to cooperate with a State Bar investigation. Bus. & Prof. Code section 6068(i). Ultimately, the State Bar may decide to file charges against a lawyer for failing to substantiate claimed MCLE compliance, or, in the State Bar’s view, misrepresenting compliance to the State Bar.
The MCLE audits have resulted in discipline against a number of lawyers. Twenty-six lawyers have been disciplined to date, nine more attorneys are awaiting final approval by the Supreme Court of their disciplinary dispositions, and at least 60 cases are currently pending before the State Bar Court. Other matters have resulted in Agreements in Lieu of Discipline (“ALD’s”) issued to attorneys, warning letters and other outcomes. One lawyer facing charges relating to MCLE non-compliance resigned from the State Bar, reportedly in connection with other serious discipline problems. It is important that attorneys understand that the potential consequences are significant.
Disciplinary risks of failing to prove MCLE compliance
The situation most likely to potentially result in an investigation or potential discipline is where an attorney states that he or she has complied with the MCLE rules but then, in the course of an audit, is unable to prove such compliance.
The State Bar rules do not specify the specific disciplinary charge or sanction that may be assessed in that situation. The State Bar consistently has taken the position in certain cases that an attorney’s failure to substantiate compliance after submitting a compliance certificate constitutes a violation of Section 6106 of the Business & Professions Code. That statute provides that the “commission of any an act involving moral turpitude, dishonesty or corruption . . . constitutes a cause for disbarment or suspension.” Section 6106 applies whether the act is committed in the course of a lawyer’s “relations as an attorney or otherwise,” and whether the act constitutes a felony, misdemeanor or not.
“Moral turpitude” is not defined in the State Bar Act or the professional rules. Case law has advanced a number of definitions over the years. “Moral turpitude has been defined by many authorities as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” In the Matter of the Disbarment of Craig, 12 Cal. 2d 93, 97 (1938).
Even if no actual intent to deceive can be shown, the State Bar has taken the position in a number of cases that an attorney’s certification of compliance without first verifying sufficient documentation constitutes an act of gross negligence. Gross negligence can constitute moral turpitude under certain conditions. “Gross carelessness and negligence constitute a violation of the oath of an attorney to discharge faithfully the duties of an attorney to the best of his knowledge and ability and involve moral turpitude, in that they are a breach of the fiduciary relation which binds him to the most conscientious fidelity to his clients' interests.” Simmons v. State Bar, 2 Cal. 3d 719, 729 (1970). Examples of gross negligence which have been found to constitute moral turpitude include an attorney’s intentionally making false statements to third parties in order to obtain a confession helpful to the attorney’s client (In the Matter of Dale, 4 Cal. State Bar Ct. Rptr. 798 (Rev. Dept. 2005); misappropriation of client funds (McNight v. State Bar, 53 Cal. 3d 1025 (1991); client abandonment, commingling funds and willful misappropriation of funds (Jackson v. State Bar, 23 Cal. 3d 509 (1979); and repeated representation of multiple clients (with conflicting interests) in criminal proceedings without adequate disclosure and consent (Gendron v. State Bar, 35 Cal. 3d 409, 425 (1976) (court held public reproval sufficient discipline).
Disciplinary defense lawyers have argued that not all instances of gross negligence constitute moral turpitude, particularly where the conduct at issue does not arise in the context of a client representation. For example, in an unpublished case, the State Bar Court found that an attorney’s “mistaken belief, honestly held,” did not constitute moral turpitude by either an intentional act or gross negligence. In In re DeBiase, 2011 Calif. Op. LEXIS 6, (Review Dept. March 25, 2011), the State Bar charged (among other counts) that an attorney had violated section 6016 by engaging in the unauthorized practice of law and knowingly making false statements concerning his suspension status. The State Bar Court Review Department found that the lawyer, during a time in which he had been involuntarily suspended from the practice, had sent out letters purporting to be an attorney. The court held that the attorney’s “conduct simply does not establish the type or degree of carelessness that would warrant” a finding of gross negligence amounting to moral turpitude. The court ultimately declined to issue any discipline for what it determined was a “one-time oversight” done with no intent to deceive. Id. at *13.
In other states, courts have considered what level of discipline is warranted for an attorney’s misstatement of compliance with MCLE requirements. In South Carolina, an attorney’s submission of a report of compliance signed under oath certifying attendance at seven hours of MCLE without the attorney’s actual attendance warranted a public reprimand. Matter of Pridgen, 288 S,C, 96, 341 S.E.2d 376 (1986). Similarly, an attorney was publicly reprimanded for misstatements that he had satisfied the MCLE requirements and had registered for a particular seminar (which he had not in fact done). Matter of Altman, 287 S.C. 321 (1985). Conversely, an attorney’s knowing misrepresentations under oath that he had attended numerous seminars, including one for which he did not arrive until after it was over, constituted fraud and deceit justifying an actual suspension. In re Diggs, 344 S.C. 397, 544 S.E.2d 628 (2001).
As of this date there are no published cases from the California State Bar Court that specify the appropriate charges or level of discipline in an MCLE case (and of course, the specific facts of each disciplinary case differ). The disciplinary standards provide that, for a violation of Bus. & Prof. Code §6106, actual suspension is appropriate. State Bar Professional Misconduct Sanction Standard 2.7. That level of discipline may be adjusted by the State Bar Court if an attorney demonstrates significant circumstances in mitigation, or the State Bar proves aggravating circumstances, such as prior discipline. Mitigating circumstances may include an absence of any prior record of discipline, emotional or physical disability, good character, candor and cooperation, and remorse and restitution. State Bar Professional Misconduct Sanction Standard 1.2(e). There is no question that any period of actual suspension has significant adverse consequences for the affected attorney, who cannot practice law during the suspension period.
For all of these reasons, it is important that every attorney take care to comply with the MCLE requirements.
- Understand the MCLE rules and know your compliance period.
- Maintain a log of all MCLE activities you participate in, including self-study. Make sure that you understand what activities qualify for self-study credit.
- Make sure to complete the required hours within your compliance period, including the “specialty” credits for ethics, elimination of bias, and substance abuse. Calculate correctly any credit hours for speaking or presenting.
- Maintain your MCLE records for at least one year after your compliance period ends.
- If you do not have records for MCLE activities you have participated in, contact the provider to obtain them.
- Do not certify compliance unless you have first confirmed that you have the necessary records documenting compliance. If you have not completed your requirements by your compliance date, complete the requirements at that time and pay the late fee.
Following these basic guidelines will ensure that you comply with the requirements, gain the educational and professional benefits of participating in MCLE activities, and, importantly, avoid the risk of discipline.
Merri A. Baldwin is a shareholder in the San Francisco office of Rogers Joseph O’Donnell P.C., where she focuses on business litigation and attorney liability and conduct, including legal malpractice, attorney-client fee disputes, ethics, professional responsibility and State Bar discipline defense. She is a member of the State Bar of California Committee on Professional Responsibility and Conduct and the secretary of the Bar Association of San Francisco. She is an adjunct professor at Golden Gate University, where she teaches professional responsibility. She is a co-editor of The Law of Lawyers’ Liability (ABA/First Chair Press 2012). She can be reached at email@example.com. The views expressed are her own.