Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

MCLE Compliance Time is Near: Watch for these Pitfalls

The October issue of the California Bar Journal is online now. Included in the discipline report for this month are three more attorneys who are serving 30 day suspensions for falsely certifying their compliance with Mandatory Continuing Education Requirements (MCLE) to the State Bar. The total number of attorneys disciplined for this specific misconduct over the last five years is probably close to 50 or more. Despite the attention this discipline should attract, attorneys continue to fall into this pit.

Most attorneys know the basics of MCLE. Every three years a California lawyer is required to take 25 hours of MCLE, including four hours of legal ethics, an hour regarding elimination of bias and an hour geared toward substance abuse and mental health issues (Bus. & Prof. Code section 6070.) 

What most attorneys don’t know is that there are fairly detailed State Bar Rules on MCLE (State Bar Rule 2.50 et seq.) that impose obligations on members of the State Bar, including Rule 2.73 which requires a non-exempt California lawyer to maintain a provider’s certificate of attendance for one year after certifying their compliance, Rule 2.90 which defines “non-compliance” as including failure to keep records of MCLE compliance.  Most attorneys are also unaware that they can apply for modification of their MCLE requirements “because of a physical or mental condition, natural disaster, family emergency, financial hardship, or other good cause” under Rule 2.55.

The penalty for non-compliance with MCLE requirements, including failing to attend the required hours of MCLE and keep the requisite records, is an administrative suspension from the practice of law. But this suspension does not happen immediately.  Rule 2.91 provides that the State Bar must send the member a notice of non-compliance that informs the member of conditions that need to met to be in compliance. Under State Bar Rules it is failure to meet the conditions in that notice of compliance that can trigger the administrative suspension (Rule 2.92.)

Lawyers fail to take their requisite MCLE courses before their compliance period on a regular basis. In most cases, this does not lead to adverse consequences if the lawyer promptly makes up the required courses, either in response to a notice of non-compliance or a State Bar audit, pays the fine of $75 and, most importantly, does not certify falsely that they met the requirements.

The object lesson is illustrated by a published discipline decision In the Matter of Yee (Review Dept. 2014) 5 Cal. State Bar Ct. Rptr. 330. Ms. Yee certified online that she met her MCLE requirements for the compliance period ending on January 31, 2011. After she received the State Bar’s random audit request that she provide her records, she was unable to locate them, completed the requirements and paid the $75 fee.  

Despite this, the State Bar’s discipline prosecutor chose to file discipline charges alleging that Ms. Yee committed an act of dishonesty or moral turpitude in representing that she had complied. At her trial, she testified that she honestly believed that she had complied but admitted that she did not check her required MCLE records to verify that she had completed all hours. She admitted to mistakes in record-keeping and poor memory. 

After the Hearing Judge recommended a stayed suspension and probation, discipline prosecutors appealed, seeking an actual suspension of 30 days. Ultimately the Review Department found that Ms. Yee was not intentionally dishonest, she was culpable of gross negligence amounting to moral turpitude by failure to check her records and accurately report her MCLE compliance. Because she was able to show substantial mitigation in her previously unblemished 22-year career and other evidence of good character, the Court ordered a public reproval.

The State Bar has been auditing MCLE performance for five years now but many attorneys are seemingly still not getting the message: MCLE compliance is not a perfunctory exercise but something that has to be taken seriously.

-- David Cameron Carr

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**