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 for SDCBA members.

Mandatory Continuing Education and Reporting: Beware!

Anna Christina Yee’s encounter with the State Bar began in January of 2011.  It was then that Ms. Yee submitted her MCLE compliance card online affirming that she had “complied with the 25-hour MCLE requirement.”  She confirmed that she had verified the information before submitting it.  She continued that she agreed to “retain proof of compliance for at least one year in case you are audited.”

Ms. Yee was one of the many California attorneys randomly selected by the “The State Bar Member Services” for an audit which requested proof of her MCLE compliance.  She checked her records after receiving the State Bar audit notification and not having found attendance records immediately completed a 25 hour bundle of online courses and paid a $75 late fee. 

However, that was not the end of the story for Ms. Yee. 

The State Bar’s Chief Trial Counsel undertook an investigation calling for her to provide proof of completion of the MCLE courses consistent with her affirmation.  She could not. She admitted making a mistake; recounted that she prepared the affirmation based upon her memory which was apparently faulty; and detailed her corrective actions to avoid a reoccurrence. 

That was not enough for the State Bar.

The State Bar filed a disciplinary action.  Ms. Yee then went to trial before a hearing judge who recommended that Ms. Yee be disciplined.  The State Bar asked for a 30 day suspension and other sanctions. The hearing judge found her culpable due to gross negligence and recommended a stay of suspension and probation.

The saga of Ms. Yee found its way to the California State Bar Court Review Department, which, on May 21, 2014, filed its decision.  In that decision, In the Matter of Anna Christina Yee, reported at 2014 Calif. Op. Lexis 19 and Certified for Publication, the court in a 2-1 decision (one judge dissenting) concluded that Ms. Yee was grossly negligent, which constitutes moral turpitude akin to fraud, dishonesty or intentional breach of a duty to a client.  Further, although no one client had been injured, nonetheless, her “negligence may affect the public in general.” 

The decision stresses that “continuing legal education is to provide continuing assurance to the public that all California attorneys no matter how many years may have passed since their law school graduation and State Bar admission, have the knowledge and skills to provide their clients with high quality legal services.”

The majority conclusion that “public reproval” would be the appropriate sanction rather than actual suspension was based on the extraordinary positive mitigating factors in favor of Ms. Yee.  The court, after reciting Ms. Yee’s  “compelling mitigation” and “lack of aggravating circumstances” concluded that in this unique situation “public reproval” is appropriate rather than suspension.

The saga of Ms. Yee contains very strong messages for California attorneys.  They must participate in the required education, and must retain the records to prove such participation.  Otherwise, an attorney may find himself or herself in a State Bar proceeding where undoubtedly State Bar counsel will argue that the attorney had fair warning of potential sanctions because of the Yee decision. 

-- Charles Berwanger

**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.**