Gina's CLE Blog

California MCLE to Audit More Attorneys

In a letter to California Local Bar Associations dated April 13, 2012, Jon Streeter, President of the State Bar of California, announced major changes in the audit process that will affect California attorneys, and likely the providers who issue credits to that audience. From his letter:

I am writing to alert you that the State Bar is taking a more aggressive approach to auditing MCLE compliance than it has historically. All California lawyers need to be aware of this change in the Bar's MCLE auditing process.

The result of the State Bar's recent 2011 MCLE audit of one percent or 635 lawyers has confirmed the need for increased auditing. Of the 635 audited attorneys, 539 provided the necessary documentation showing full compliance. Of the remaining 96 attorneys, five have been suspended due to their inability to show any compliance. Most of the remaining 91 attorneys had minor reporting deficiencies and received a cautionary letter from our MCLE compliance group about future compliance. Approximately 25 of the 91 are being referred to the Office to Chief Trial Counsel for disciplinary action. Using simple math, we see that 15% of this reporting group were not in compliance.

This result is troubling and reaffirms the action being taken by the State Bar. In 2012, California attorneys can expect that five percent or roughly 3,000-4,000 lawyers to be audited. In 2013, the goal is to audit 10% which translates to 7,000-8,000 lawyers. Letters requesting proof of compliance for 2012 will be mailed in June.

The message is clear. California lawyers must fulfill and accurately document and report their MCLE requirements. No California attorney should be surprised if their compliance certificate is audited. For more information regarding MCLE requirements and reporting, visit the State Bar's MCLE web page.

The State Bar is increasing audits five-fold in 2012 and ten-fold by 2013.

So what does this mean for attorneys? More accurate and inclusive record keeping should become the norm in case of audit. The State Bar requires California attorneys who are audited to provide:

• The certificates of attendance given to attorneys by providers;
• The record of self-study activities including, as appropriate, the title, provider, time spent in the activity, subject matter of the activity, and the date engaged in activity; and
• Proof of exempt status, if applicable.

Attorneys must maintain their own records, listed above, for at least one year from the time compliance is reported.

And what does this mean for us as providers? We, too, must be more diligent in our tracking and record keeping. Each attendee must be given a Certificate of Attendance for his or her own records, and the proof of attendance upon which this issuance is based must be maintained by the provider for at least four years. If an attendee is audited, the provider must be able to produce a duplicate record that reflects the attorney's attendance.

The Bar plans to send out letters for this year's audit in July. Those selected will need to fill out an online MCLE compliance log and submit actual Certificates of Attendance, either by mail or email.

Comment Period Open for Proposed Amendments to Indiana CLE Rules

The Indiana Supreme Court Committee on Rules of Practice and Procedure for Public Comment is inviting public comment on proposed rule amendments. These amendments were proposed by the Indiana Commission for Continuing Legal Eduction and have been published for comment at http://www.in.gov/judiciary/3784.htm.

According to Julia Orzeske, Executive Director of the Indiana Commission for CLE:

"These amendments clarify how and when attorneys and judges can challenge CLE decisions and impose deadlines on attorneys, judges, sponsor, and mediators when applying for approval of courses or reporting attendance. Additionally, the amendments impose an application fee for courses presented by non-approved sponsors and late processing fees for tardy submissions of course applications and attendance." [email to sponsors, 3/30/2012]

The comment period will be open until May 9, 2012. Comments should be submitted, in writing, to:

Lilia G. Judson, Executive Director

Indiana Supreme Court

Division of State Court Administration

30 South Meridian Street, Suite 500

Indianapolis, IN 46204

or via email to: rulescomments@courts.in.gov

 

 

No Mandatory CLE in Connecticut for at Least One More Year

Last Thursday, the Connecticut Superior Court Rules Committee heard testimony from several attorneys, including CBA President-elect Barry Hawkins and New Haven County Bar President Irene Jacobs, regarding a proposal requiring lawyers to complete at least 36 hours of CLE every three years. The proposal, endorsed by the CBA's House of Delegates, has created a deep division within the bar.

Testimony included information from Jacobs (who spoke against the proposal) that New Jersey, the most recent state to adopt MCLE requirements, found that the costs of implementing the program were higher than anticipated. The costs were not covered by the annual $4 per lawyer assessment and the bar borrowed money from the New Jersey Judicial Branch to fund the start-up.

Stating its own concerns about the costs of the program, the Rules Committee then voted to table the proposal. The move essentially puts the mandatory requirement on hold for at least a year.

The Rules Committee has also decided to ask Chief Justice Chase T. Rogers to form a committee of judges to evaluate the administrative challenges and other burdens that may be born if a mandatory requirement is implemented.

Maryland No Closer to MCLE

In an update yesterday from Judge Lynne Battaglia's (Maryland Court of Appeals) chamber, Maryland has moved no closer to requiring its licensed attorneys to complete mandatory continuing legal education programs.

Last year, the Professionalism Commission, set up by the Maryland Court of Appeals, surveyed the bar to determine how attorneys are currently taking CLE, and at what levels. The survey followed a recommendation that a 10-credit mandatory requirement be established for the state. The Commission, headed by Judge Battaglia, then compiled the results for presentation to the Court.

According to Judge Battaglia's assistant, while the recommendation has come before the Court, they considered it but took no action at the time. There is no update as to when it will come before the Court again for further action.

Iowa Amends Ethics MCLE Requirement

On February 20, 2012, the Iowa Court issued an order adopting amendments to its ethics continuing legal education requirement. The Court noted:

In recent years, as many as one-third of the published disciplinary opinions of the Supreme Court have specifically mentioned substance abuse or mental health issues on the part of the respondent. Staff members at the Attorney Disciplinary Board and the Grievance Commission estimate that the majority of founded disciplinary matters in Iowa involve lawyers with a substance abuse issue, a mental health issue, or both. As a preventive measure designed to reduce lawyer discipline matters and harm to clients, the definition of what constitutes legal ethics for the purposes of the biennial ethics continuing legal education (CLE) attendance requirement is amended to include instruction specifically designed for lawyers regarding substance abuse and mental health. The biennial ethics attendance requirement is increased from two to three hours.

Substance abuse prevention programs and those courses dealing with mental health issues and treatments may now qualify for ethics CLE in Iowa. These credits will count toward the three credits (up from two credits ) now required every two years.

The three-hour requirement applies to the 2012-2013 and subsequent ethics reporting periods. Thus, attorneys must first report a minimum of three hours of ethics for the 2012-2013 reporting period in the CLE report due no later than March 1, 2014.

 

Did You Know? Colorado Has Two Rounding Rules!

With the craziness that always accompanies year-end: attorneys seeking last-minute credits, running through hundreds of pieces of paper to generate all of the compliance paperwork, family holiday obligations...I am finally settling back into the rhythm of the work day once again.

One interesting fact that came to light in our year-end crunch - Colorado has two diferrent rounding rules! We have always used the "general" rounding rule in Colorado: for every 50 minutes of class an attorneys earns one credit, rounded to the nearest whole credit. But, interestingly, if the topic involves ethics the minutes are divided by 50 and rounded to the nearest 1/10 of a credit.

This will make for some interesting changes in our processes here in the office as we don't currently have a way to incorporate two different rounding rules based on content into our system, so we'll have to handle manually for now.

Virginia MCLE Rule Changes Now in Effect

With the compliance year beginingon November 1, 2011, Virginia will limit the number of pre-recorded (non-live) credits an attorney may use to fulfill his or her mandatory requirements to eight (8) credit hours.

From the Virginia State Bar website:

"The Mandatory Continuing Legal Education Board has always considered live interaction with course presenters and other attorneys a valuable educational component. The new regulations recognize the advantages of modern technology in continuing legal education while balancing the benefits of professional interaction. The board has determined that a minimum hourly requirement for courses that provide simultaneous live interactivity will be required. Effective November 1, 2011, for the compliance year that ends October 31, 2012, the new MCLE regulations will require active attorneys to attend a minimum of 4 credit hours of live interactive programming. “Live” programs are defined as courses where there is simultaneous, live interactivity with course presenters during the program and will include traditional live on-site programs, live presentations delivered via telephone or webcast, or other courses that may be developed that include simultaneous, live interaction with the presenter or a qualified discussion facilitator during the program."

As noted above, attorneys may still complete the four "live interactive" credits through technological means - webcast or teleseminar - they do not have to be completed through attendance at live in-person conferences. The required two credits of ethics may be earned with pre-recorded programs as well as live.

One interesting note is that all carryover credits from 2011 will count toward the 2012 live interactive requirement even if they were earned through pre-recorded programs. This will certainly allow for some flexibility for attorneys who have traditionally taken all of their credits with recorded programs transitioning to the new requirement. Going forward, with subsequent compliance periods, a maximum of eight hours (including ethics) may be carried forward from pre-recorded programs.

Keeping Up With Blogging - Writing a New Post

My last blog post was on the challenges of keeping up with the myriad of rules and regulations that govern the mandatory continuing legal education world. Today, I'm worried about keeping up with the expectations of my audience in the blogosphere. It is challenging to stay on top of my thoughts and put together relevant blog posts when my daily job often takes up so much of my time, both in the office and out.

This last week I had the pleasure of traveling to Atlanta for a conference we were holding on M&A and Private Equity topics. Our attendance was high and I always appreciate the opportunity to interact with our customers, speakers, and staff located at other sites. 

I was slightly disappointed that my first trip to Atlanta (outside of the airport that is) was met with less than perfect weather. I was hoping for the "Hotlanta" about which I've heard so much, but was instead greeted by rain and 60-degree weather. As a Minnesotan, I would normally relish such balmy temps in October, however we have been experiencing a crazy mix of sun and high temps (70's-80's) so I was a might chilly.

The highlight of my trip was a meeting with the staff at the Georgia MCLE Department of the State Bar. Always a pleasure to work with, I got to put faces to names and voices and discuss process improvements and how the State's system works. It was a great meeting and I left feeling ready to implement changes to our internal procedures here at West LegalEdcenter which will hopefully make life easier for the staff in Georgia.

While my trip to Atlanta may have delayed my recent blog posting schedule, it has helped me keep in touch with the regulators who will keep me informed about changes to the rules and regulations that may occur. That's a tradeoff that I'll make any day!

Illinois Amends MCLE Rules - Effective Immediately

 
Today, September 27, 2011, the Supreme Court of the State of Illinois has amended several of the rules of the state's MCLE program.

Following the June announcement of the new mentoring program in Illinois, the Courts and MCLE Commissions determined that amendments to several rules were necessary in order to allow new admittee mentees to claim the professional responsibility credit offered toward their Newly-Admitted Attorney Requirement.

While I haven't had time to fully digest all of the changes (and there are many!), some of the ones that stood out for me:

• Major overhaul of Rule 793 - Basic Skills Course requirement has been changed to a Newly-Admitted Attorney requirement and details a three-element approach to fulfillment:
  • 6 credit Basic Skills course on professional responsibility topics. This portion may be satisfied through participation in an approved mentoring program.
  • 9 additional hours of MCLE, which may include additional professional responsibility hours.
  • Reporting to the MCLE Board.
• Carryover credits - prior to these amendments, professional responsibility credits were not eligible for carryover into subsequent periods. Now, attorneys may carry over additional professional responsibility credits which may be used to satisfy the PR requirement of the next period. Newly admitted attorneys may also now carryover up to 15 credits, rather than the previous limit of 10, if the credits were earned after admission to the bar and before the start of the attorney's first  two-year reporting period.
• More detailed clarification of the standards required for attorneys to self apply for individual out-of-state programs for which the provider has not sought Illinois approval.

There are many additional changes not mentioned above. I'll post more on these changes and the potential impact they may have on providers and attorneys in a subsequent post.

Attention Ohio Attorneys! CLE Commission Seeks Feedback

 
Earlier this month, the Ohio Supreme Court's Commission on Continuing Legal Education began distributing a survey to all judges and attorneys in the state.

According to the Supreme Court of Ohio and Ohio Judicial System website, the survey will only take a few minutes to complete and seeks input on a voluntary and anonymous basis.

In a speech to the Ohio State Bar Association in May in which she discussed the intent of the request for feedback, Chief Justice Maureen O’Connor called it a “Goldilocks” survey in that “we want to know if you think the way CLE is structured and reported is too much, too little or just right.”

The commission hopes to receive feedback on the following topics, among others:

• How CLE is delivered and earned.
• Should self study course credit be capped, is the current six-hour cap sufficient or should it be expanded?
• Are rules that preclude an event from CLE credit if food is consumed still relevant?
• Would attorneys engage in more pro bono activity if they received CLE credit for such work?

The survey is part of a review by the Commission of Rule X of the Rules for the Government of the Bar and Rule IV of the Rules for the Government of the Judiciary, which set forth CLE requirements as well as regulations for attorney and judge CLEs.

During her speech in May, Chief Justice O’Connor also stated that she viewed the process of reforming CLE “as part of the particular obligation that we as lawyers have to support education in the law.”

It will be interesting to find out the results of the survey, particularly the questions surrounding the self study limits, which haven't changed in the more than 10 years in which I've been involved in CLE. Watch here for more information as it becomes available.

Updated Map - Online Attendance and Applications

 
I've updated the map - ok, corrected the map - for Online Provider Applications or Attendance Reporting. I'd mislabeled the palest yellow - these are the states that have NO online system at the present time. Also, I'd mixed up Georgia and Alabama on the map - my issues with geography are well-known amongst my friends.

Apologies for any confusion - and thanks to Sharon for politely pointing out my error!

 

Growing Trend: Mentors and Mentees Get MCLE Credit

 

More and more regulatory agencies are recognizing the value in the mentoring relationship between experienced attorneys and those newly admitted to practice. With the success of mandatory programs such as those created in Georgia and Utah, several additional states have begun programs - some mandatory and others voluntary.

With the increase in mentorship programs, more states are also allowing both mentors and mentees to claim MCLE credit for some portion of the program. Below is an audit of the current state of these credit allowances. 

Alaska:

Credit may be given for mentoring another attorneyin providing pro bono services. There is no indication of number of credits or limitations on credits which may be earned. (emphasis added)

Arizona:

Approval may be sought for other activities. Attorneys may petition the MCLE Committee for review of those activities and assignment of method of calculating credit hours. Such activities may include, but are not limited to, mentoring and consultation activities. (emphasis added)

Colorado:

Direct Representation and Mentoring in Pro Bono Civil Legal Matters

• A lawyer may be awarded a maximum of nine (9) units of general credit during each three-year compliance period for providing uncompensated pro bono legal representation to an indigent or near-indigent client or clients in a civil legal matter, or mentoring another lawyer or a law student providing such representation. (emphasis added)
• To be eligible for units of general credit, the civil pro bono legal matter in which a lawyer provides representation must have been assigned to the lawyer by: a court; a bar association or Access to Justice Committee-sponsored program; an organized non-profit entity, such as Colorado Legal Services, Metro Volunteer Lawyers, or Colorado Lawyers Committee whose purpose is or includes the provision of pro bono representation to indigent or near-indigent persons in civil legal matters; or a law school. Prior to assigning the matter, the assigning court, program, entity, or law school shall determine that the client is financially eligible for pro bono legal representation because (a) the client qualifies for participation in programs funded by the Legal Services Corporation, or (b) the client’s income and financial resources are slightly above the guidelines utilized by such programs, but the client nevertheless cannot afford counsel.
• Subject to the reporting and review requirements, (a) a lawyer providing uncompensated, pro bono legal representation shall receive one (1) unit of general credit for every five (5) billable-equivalent hours of representation provided to the indigent client; (b) a lawyer who acts as a mentor to another lawyer as specified in this Rule shall be awarded one (1) unit of general credit per completed matter; and (c) a lawyer who acts as a mentor to a law student shall be awarded two (2) units of general credit per completed matter. A lawyer will not be eligible to receive more than nine (9) units of general credit during any three-year compliance period via any combination of pro bono representation and mentoring.
• A lawyer who acts as a mentor to another lawyer providing representation shall be available to the lawyer providing representation for information and advice on all aspects of the legal matter, but will not be required to file or otherwise enter an appearance on behalf of the indigent client in any court. Mentors shall not be members of the same firm or in association with the lawyer providing representation to the indigent client. 

Georgia:

Attorneys newly admitted after June 30, 2005 must complete in the year of their admission or in the next calendar year the State Bar of Georgia Transition into Law Practice Program, and such completion of the Transition into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such newly admitted active member for both the year of admission and the next succeeding year.

• Attendance satisfies the mandatory continuing legal education requirements for both the year of admission and the succeeding year.
• The Transition Into Law Practice program is a two day program consisting of either Enhanced Bridge the Gap or Fundamentals of Law Practice on day one and Mentoring Plan of Activities and Experiences on day two (emphasis added)
  • Enhanced Bridge-the-Gap is the continuing legal education program of the Transition Into Law Practice Program that is delivered by the Institute of Continuing Legal Education in large group settings. Enhanced Bridge-the-Gap consists of two consecutive days of course work that inform and facilitate further discussion in the mentoring context.
  • Fundamentals of Law Practice is the continuing legal education program of the Transition Into Law Practice Program that is delivered by the Institute of Continuing Legal Education in small group settings to foster close interaction between newly admitted active lawyers and instructors. Fundamentals of Law Practice consists of two consecutive days of course work that inform and facilitate further discussion in the mentoring context.
  • Mentoring Plan of Activities and Experiences is the plan that structures and guides the mentoring component of the Transition Into Law Practice Program. The Plan shall be submitted to the Program in the year of admission or early in the next calendar year by the newly admitted active member and his or her mentor. The Plan must be completed in the year of admission or the next calendar year.

Illinois:

• Activity of Lawyer-to-Lawyer Mentoring. Lawyers completing a comprehensive year-long structured mentoring program, as either a mentor or mentee, may earn credit equal to the minimum professional responsibility credit during the two-year reporting period of completion, provided that the mentoring plan is preapproved by the Commission on Professionalism, the completion is attested to by both mentor and mentee, and completion occurs during the first three years of the mentee’s practice in Illinois. For reporting periods ending in 2011 or earlier, the maximum number of professional responsibility credit hours shall be four. Beginning with the reporting periods ending on June 30 of either 2012 or 2013, in which 30 hours of CLE are required, the maximum number of credit hours available shall be six.

Indiana:

Upon satisfactory completion of the Mentor Match program, including:

1. The activities elected in the Mentoring Plan at the outset of the mentoring term were completed
2. Participation in discussions about the following topics:
   1. Substance abuse and mental health issues
   2. Attorney Relationships with third parties
   3. Trust Accounts and IOLTA
   4. Attorney-Client Relationships, Professionalism/Civility
   5. Pro Bono Activities
3. Completion of at least six in-person meetings over the course of the term for a minimum of nine mentoring hours;

Mentors may claim twelve hours (12) of CLE/Ethics and Mentees may claim 6 hours APC/CLE.

Oregon:

The Oregon State Bar has launched its New Lawyer Mentoring Program, beginning wiht incoming bar members sworn in May 2011. The mandatory program will formalize a process that for many decades took place organically, through connections forged at law firms and other close-knit bar communities. As the Oregon Bar has grown, the process of introducing new lawyers to the legal community, and guiding them through the transition to law practice, has grown more amorphous. The NLMP offers new bar members one-on-one guidance on elements of a highly competent practice, while promoting the professionalism, civility and collegiality that make Oregon among the best places in the country to practice law.

The program is loosely modeled on programs in Georgia and Utah, which have received accolades for giving all new bar members meaningful access to experienced lawyers and a well-developed mentoring program in their first year. The Oregon model emphasizes a flexible approach in which mentors and new lawyers take the core curriculum and shape it to best meet the needs of the new lawyer.

The curriculum includes six components, each designed with the flexibility to tailor it directly to the needs of the new lawyer. New lawyers will work with their mentors to develop an individualized Mentoring Plan covering:

1. Introduce new lawyers to the legal community;
2. Rules of Professional Conduct, Professionalism, and Cultural Competence;
3. Introduction to Law Office Management;
4. Successful Client Relationships;
5. Career Development, Public Service, Bar Leadership, and Work/Life Balance;
6. Practical Area Basic Skills.

The mentorship program will be 12 months long. It will not replace the CLE requirements for new admittees, but upon completion new admittees will get 6 general credits they can carry forward into their next compliance period. Mentors will get 8 general credits toward CLE requirements. If another lawyer assists with the mentoring, the credits must be apportioned between them.

Texas:

• A Mentor Programis an Accredited CLE Activity that is either sponsored or cosponsored by the State Bar of Texas or otherwise approved by the MCLE Committee, is open to all members of the State Bar, and is completed in conjunction with MCLE approved training. The purpose of the approved training/mentoring relationship shall be the preparation of participants for providing pro-bono services or for managing professional responsibility challenges and shall consist of substantive legal training as opposed to coaching or personal encouragement. A maximum of five (5) hours, including one (1) ethics hour, per compliance year may be claimed for the actual amount of time spent in the mentoring relationship. Mentor programs shall be submitted to the MCLE department in accordance with Section 10.2 and 10.8. (emphasis added)

• Participating in a State Bar accredited Mentor Program is eligible for CLE credit up to a maximum of 5 credit hours, including 1 ethics hour, each year. Credit hours are calculated based on actual time spent in the mentor relationship.

Utah:

• A new lawyer or mentor who successfully completes the requirements of the Model Mentoring Plan or an approved plan shall receive up to three hours of ethics or professional responsibility credit. (emphasis added)

Washington:

Pro bono legal services: A member may earn up to six (6) hours of credit annually by certifying that the member has fulfilled the following requirements under the auspices of a qualified legal services provider:

• Each attorney seeking CLE credit will have received at least two (2) hours of education, under the auspices of a qualified legal services provider, which may consist of:
  • not less than two (2) hours of training with live presentation(s); or
  • not less than two (2) hours viewing or listening individually to video or audio tapes approved by the CLE Board; or
  • any combination of the foregoing training; or
  • serving as a mentor to a participating attorney who has completed the foregoing training; and (emphasis added)
• Each attorney seeking CLE credit also will have subsequently completed not less than four (4) hours of pro bono work in providing legal advice, representation, or other legal assistance to low-income client(s) through a qualified legal services provider or in serving as a mentor to other participating attorney(s) who are providing such advice, representation, or assistance. (emphasis added)

Wyoming:

Each new admittee to the Wyoming State Bar shall complete, within the first year after admission, a four-hour continuing legal education course which covers the following criteria:

• One hour of general procedures, with focus on Professional Conduct Rules 1.1 (competence), 1.3 (diligence), and 1.4 (communication).
• One hour of fees and trust account management, with focus on Professional Conduct Rules 1.5 (fees), 1.15 (safeguarding property), and 1.16 (terminating relationships).
• One hour of conflicts, with a focus on Professional Conduct Rules 1.7, 1.8, and 1.9.
• One hour of the function of the Wyoming State Bar and Bar Committees including, but not limited to, the mentoring program and the Lawyers Assistance Committee. (emphasis added)

These credits will be counted toward the required 15 hours of continuing legal education.

• For Mentoring Another Attorney: A WYPBO attorney who acts as a mentor to another attorney for a pro bono case will be awarded one (1) CLE credit per case and shall not be eligible to receive more than three (3) CLE credits for pro bono work in any one calendar year. (emphasis added)
• For Mentoring a Law Student: A WYPBO attorney who acts as a mentor for a law student who has successfully completed at least four (4) semesters at an ABA accredited law school on a case will be awarded three (3) CLE credits and shall not be eligible to receive more than three (3) CLE credits for pro bono work in any one calender year. (emphasis added) 

New Jersey New Admit Requirement Changes - Update from Previous Post

 
 
I'm going to take a break from the planned series of the rules by map (I will return to the topic later this week) in order to update a recent post: "New Jersey Amends Their MCLE Rules - Effective Immediately" from August 4, 2011.

In the post I stated:

This means that newly admitted attorneys who have a one-year period as their first compliance period (those in Group 1 in even-numbered years and Group 2 in odd-numbered years) - will not be required to fulfill the newly admitted 15 credit requirement immediately. Instead, these attorneys will be required to complete 12 credits, including two ethics (one half of the "regular" requirement). Then, in their second compliance period (their first two-year compliance period), they will complete the newly admitted requirement.

Then I gave an example where an attorneys with a one-year compliance period completes only general and ethics credits, no new admittee topic credits, during the one-year period and completes all 15 new admittee topic credits during her first two-year period.

While a new admittee can certainly fulfill the requirements in this way, he or she is not limited or required to do so.

The new rule states that a new admittee must complete fifteen of his or her required credit hours in five of nine subject areas "[b]y the end of...[his or her]...first two-year compliance period" (emphasis added).

This creates a two-tier requirement for those attorneys having first a one-year compliance period.

The first requirement is that the attorney complete 12 credits (at least two of which must be ethics) in his or her first compliance period and 24 credits (at least four of which must be ethics) in his or her second compliance period.

The second requirement is that the attorney must complete at least 15 credits (in at least 5 of 9 topic areas) of new admittee topic credits by the end of the second compliance period.

I have updated the previously linked chart - adding color and additional information - to make this distinction more clear. Again, feedback is certainly welcome!

New Jersey Amends Their MCLE Rules - Effective Immediately

 
On July 21, 2011, the Supreme Court of New Jersey approved the following changes to the Regulations of the Board on Continuing Legal Education:

• BCLE Reg 103:1(a) - definition of "active lawyer"
• BCLE Reg 201:2 - requirements for newly admitted attorneys
• BCLE Reg 201:6- teaching CLE
• BCLE Reg 201:8 - allowing for 100% alternative coursework in certain circumstances via alternative verifiable learning formats
• BCLE Reg 202:1 - creating an additional exemption for attorneys attaining the age of 75
• BCLE Reg 401:4 - reporting requirements for newly admitted attorneys

Many of these changes will have a significant impact for New Jersey attorneys - particularly for newly admitted attorneys, as discussed below.

THE CHANGES:

BCLE Reg 103:1(a): added language to the rule clarifying.

The rule now states (underlined changes): Any lawyer licensed in New Jersey who is active for any part of a year and not otherwise exempt from these continuing legal education requirements must comply with these regulations.

BCLE Reg 201:2: added language applying the newly admitted additional requirement that 15 of the 24 credits must be in five of the nine new admittee subject matters to the first two-year period.

The rule now states (underlined changes, bracketed omissions): By the end of [During] a newly admitted lawyer’s first two-year compliance period after admission to the Bar of New Jersey, the newly admitted lawyer must have satisfied fifteen of [his/her twenty-four] his or her required credit hours in any five of the following nine subject areas: New Jersey basic estate administration; New Jersey basic estate planning; New Jersey civil or criminal trial preparation; New Jersey family law practice; New Jersey real estate closing procedures; New Jersey trust and business accounting; New Jersey landlord/tenant practice; New Jersey municipal court practice; and New Jersey law office management.

This means that newly admitted attorneys who have a one-year period as their first compliance period (those in Group 1 in even-numbered years and Group 2 in odd-numbered years) - will not be required to fulfill the newly admitted 15 credit requirement immediately. Instead, these attorneys will be required to complete 12 credits, including two ethics (one half of the "regular" requirement). Then, in their second compliance period (their first two-year compliance period), they will complete the newly admitted requirement.

Example:

Attorney with birthday in February (Group 1) is barred in 2011. His or her first compliance period is January 1, 2012 to December 31, 2013. He has a two-year period, so must complete 24 credits. Of the 24 credits, 15 must be in newly admitted attorney practice areas. Of the 24, four must be in ethics and professionalism. During the attorney's second compliance period, regular requirements are now in effect.

Attorney with birthday in October (Group 2) is barred in 2011. His or her first compliance period is January 1, 2012 to December 31, 2012. She has a one-year period, so must complete 12 credits. Of the 12 credits, none must be in newly admitted attorney practice areas, but two must be in ethics and professionalism. The attorney's next compliance period is January 1, 2013 to December 31, 2014. She now has a two-year period, so must complete 24 credits. Of the 24 credits, 15 must be in newly admitted attorney practice areas. Of the 24, four must be in ethics and professionalism.

In effect, New Jersey has implemented a one-year "buffer" for newly admitted attorneys who have a one-year period as their first compliance period. This was created in order to make the effect of the requirement more equitable between attorneys in different groups. Under the previous version of the rules, attorneys with a one-year compliance period were required to complete 17 credits (15 newly admitted practice area plus two ethics), compared to those with a two-year period who only had to complete 12 (24 in two years).

BCLE Reg 401:4 clarifies this further in discussing the reporting requirement for newly admitted attorneys. The changes reflect this "buffer" period as described above.

The rule now states (all additional language): For all newly admitted lawyers whose first compliance report must be made in an even-numbered year, those in Compliance Group 1 will have a transitional reporting requirement and will be required to report on the Annual Attorney Registration Statement due in that first compliance reporting period only one-half of the mandatory CLE requirements. For all newly admitted lawyers whose first compliance report must be made in an odd-numbered year, those in Compliance Group 2 will have a transitional reporting requirement and will report one-half of the mandatory CLE requirements on the Annual Attorney Registration Statement in that first compliance reporting period. Continuing thereafter, compliance reports become due as provided in BCLE Reg. 401:2.

I have created a chart which I hope brings additional clarity to these changes. Please feel free to comment or send me feedback.

BCLE Reg 201:6 adds some additional information regarding calculating teaching credit.

The rule now states (underlined changes, bracketed omissions): A lawyer who teaches an approved course designed principally to maintain or advance the professional competence of lawyers and/or expand an appreciation and understanding of the ethical and professional responsibility of lawyers is entitled to twice the credit hours authorized for that portion of the course taught by the lawyer claiming teaching credit. Teaching credit for the same course offered more than once during a compliance [cycle] period shall be claimed only once during [any] each compliance period. Nevertheless, customary credit will be allowed for the teacher’s attendance at the same course for any second or subsequent course taught during that compliance period. Law school professors and instructors shall not be awarded CLE credit for teaching full [and] or part-time law students.

BCLE Reg 201:8 allows attorneys who do not reside or work in New Jersey or other MCLE jurisdiction, or those who obtain a medical certification, more flexibility to fulfilling the requirement by allowing these attorneys to take all of their credits through alternative verifiable learning formats.

The rule now states (underlined changes): Lawyers who do not reside or work on a regular and continuous basis in New Jersey or in another mandatory CLE jurisdiction for the entire compliance period or who are medically certified as unable to attend live courses: Courses taken through alternative verifiable learning formats, if approved for CLE course accreditation, may account for 100% of the credit hours required in a compliance period; provided, however, that this shall apply only during such time as (i) the lawyer does not reside or work on a regular and continuous basis for the entire compliance period in New Jersey or in another mandatory CLE jurisdiction or (ii) a licensed physician certifies to the Board that the lawyer is unable to attend live courses.

BCLE Reg 202:1(a) extends the exemption from the requirement to attorneys who are 75 or older.

The rule now states (underlined changes): only attorneys who have been admitted to practice law in any State or the District of Columbia for fifty years or more, those who have reached age seventy-five regardless of length of tenure at the Bar, those on full-time active duty in the military, VISTA or Peace Corps, and those retired completely from the practice of law are exempted from the mandatory CLE requirements.

Entertaining and Educational CLE? Content Spotlight

 
The Oregon State Bar requires that all attorneys complete one hour of training every three years designed to provide education on the duties of attorneys to report child abuse. This has been a very difficult hour to provide on West LegalEdcenter, as finding an attorney or subject matter expert was a challenge.

Emily Simon, a criminal defense lawyer in Portland Oregon with significant experience in this area, recently presented "Understanding Child Abuse and the Mandatory Requirements for Reporting It", now available on demand.

According to Oregon Revised Statute 419B.010, "Any public or private official having reasonable cause to believe that any child with whom the official comes in contact has suffered abuse, or that any person with whom the official comes in contact has abused a child shall immediately report or cause a report to be made . . ." Those "public or private officials" include attorneys.

Ms Simon's presentation provides an explanation of the requirement of Oregon lawyers to report child abuse, including the relevant statutory provisions, including when they apply, how to report, and much more.

While this program addresses the Oregon statute, it also deals with the ethical issues involved in reporting child abuse, which may be relevant to any attorney.

The program is available for 1.0 credit which fulfills the Statutory Child Abuse Reporting Obligation requirement.

Although I hesitate to call this program "entertaining", it was a fast-paced, interesting, and still very educational hour of CLE.

The Pain of Travel - But, Who am I to Compain?

 
Last week I flew to Harrisburg, Pennsylvania for the CLE Board's annual provider conference. It was very informative and great to see a board and staff that are committed to staying at the forefront of technological advances, adjusting accreditation to account for changes in topics available, and which provides the responsiveness required to support a current MCLE program.

Getting to and from Harrisburg, however, was more than a little complicated this go-round. Weather in Chicago (on both Thursday and Friday), further challenged the trip.

On Thursday, I booked myself on an early (very early - what was I thinking?) flight from Minneapolis to Chicago, connecting to Harrisburg later that morning. We boarded the plane almost on time - then sat on the plane on the runway for about a half an hour due to a ground-stop in Chicago for thunderstorms. Once in the air, the normally 50 minute flight was extended by a tour of Madison - we circled for about 30 minutes there before getting the go-ahead to land at O'Hare.

 
The approach to Chicago was a bit nerve-wracking. I consider myself a pretty good flier. But when the heavy turbulence brings out screams from fellow passengers and conjures images of scenes from "Lost".

I really just wanted to be on the ground, and soon. Once landed, we waited on the tarmack for another 30 minutes as lightening at the airport had all personnel safely inside the airport. Hopefully we were safe in the big metal plane...

The plane to Harrisburg was small, thus no bridge way. Instead, we got to run about 100 feet in the pouring rain and leave our luggage to soak plane side. Luckily, the rest of the flight was uneventful. Our rental car agent was lovely and upgraded our car at no charge.

Returning to Minnesota also became an ordeal due to weather delays in Chicago. After sitting on the plane in Harrisburg waiting for a "wheels up" time from Chicago, we de-boarded at 8:02pm. Note to anyone flying through Harrisburg: the airport closes up shop - completely - at 8:00pm.

We were rerouted through Charlotte, ran across the airport going from Gate E33 to B7 just in time to catch the connection (I'm pretty sure they held it for us - there is no way we would have made it otherwise). We were forced to gate check our luggage as the plane was full by that point, so that meant waiting for luggage at the carousel upon landing - at 12:30am. I'd really expected to avoid that by not checking luggage! I fell into bed somewhere near 1:30am - happily home.

Despite the woes detailed above - I traveled 2,277 miles in about 17 hours (including time spent waiting in the airport). In the old west, a covered wagon could travel about 1 to 2 miles per hour. This means that it would have taken me 47 1/2 days traveling 24 hours a day to complete my trip. At the pace then accepted (daylight hours, no travel on Sundays) it would have more likely taken about 4 months for the journey.

I don't think I'll be complaining about a hour or two delay anymore. I'll just appreciate what 150 years of technological advancement has brought.

I'll write another post later this week about the conference itself.

 

 

Off to Harrisburg Pennsylvania for the 2011 PA CLE Provider's Conference

 
On Friday, June 10, 2011 the Pennsylvania Continuing Legal Education Board is once again hosting their annual CLE Provider's Conference. Held at the Hilton Hotel in Harrisburg, the conference gives providers a chance to meet the PA CLE Staffand get updates on the CLE program and the elements that comprise it.

This year's Keynote is entitled "Soft Skills: Importance for Lawyers - Importance for CLE" by Paul Gilbert, Chief Executive, LBC Wise Counsel.

CLE Course providers are regularly seeking ways to improve and refine their educational offerings (and the legal profession.) In today's business climate, soft skills are recognized as competencies just as important as academics when it comes to determining success. Integration of soft skill development into CLE can result in a more robust educational opportunity.

What are "soft skills?" Why are they important? Should we connect soft skills to continuing legal education? How can we connect soft skills to continuing legal education? What are some strategies to imprint soft skill development into programs for legal audiences? Developing courses specifically to address soft skills? vs. incorporation of professionalism/soft skill development into "hard skills" programs?

The conference will also provide a panel discussion of CLE in Pennsylvania including news and updates, pursuing MCLE's goal, evolving CLE subject matter, modern challenges facing CLE course providers, and more.

I'll post upon my return - providing, of course, that an self-induced chocolate coma is not the result of my side trip to Hershey, Pennsylvania, "The Sweetest Place on Earth (R)," on Thursday.

Biggest News Since the Royal Wedding Hits the UK - Major Changes to CPD for Barristers

Yes, I'm taking advantage of the hype. Put a picture of the Royal Wedding on the blog and folks will flock to view!

But all of the pomp and circumstance is now past and William and Kate are on their way to a long and happy life together. What's the next news that will capture the attention of the UK and the world? Major changes in the CPD rules for barristers, of course!

A review of CPD for the Bar was conducted from January 2010 to April 2011 under the chairmanship of Derek Wood CBE QC. Recommendations were made to the Bar Standards Board at its meeting on May 19, 2011 concerning ways in which the current system could and should be revised.

The Board has now released the Report of the Working Group - Review of CPD, as well as a draft handbook (subject to amendment and to be put to the Board for adoption after this period) which brings together previous existing material, regulations, and guidelines, revised and updated in accordance with the Working Group that were accepted by the BSB. They have also compiled a two page summary document - CPD at a Glance, which highlights the new requirements, effective January 1, 2013.

So what are these changes?

1. The number of hours required to be completed by barristers has increased significantly.

Under the current system, established barristers (beyond their first three years of practice) were required to complete 12 credits per year. Of the 12, at least 4 were required to be accredited and approved by the BSB. Under the new system, effective January 1, 2013, established practitioners must complete 24 credits each calendar year, a minimum of 12 of which must be verifiable (see below).

New practitioners (those within their first three years of practice) were required to complete 45 hours within their first three years of practice, including nine hours of advocacy training and three hours of ethics training. Under the new scheme, new barristers must complete 24 hours of CPD each year, of which 12 hours must be verifiable. They must also still complete the nine hours of advocacy and three hours of ethics training within the first three years.

2. The new system doesn't distinguish between formally accredited and non-accredited hours.

Instead, there will now be a distinction between verifiable and non-verifiable CPD. At least 12 of the 24 credits for all barristers (both new and established) must be in the form of verifiable CPD.

Verifiable CPD hours can be earned through participation in courses such as attending a course, lecture, seminar, conference, or similar event; participating in an online course; through training as a judge, recorder, tribunal member, arbitrator, or mediator; teaching at a lecture or training session (university level or above); writing for publication of a book or article; or through the development of personal or practical skills by attending a course on practice management skills.

Non-verifiable hours are those not capable of being independently documented - for example the reading of law reports. This private study can be claimed for non-verifiable hours if it undertaken otherwise than for the purpose of providing legal services to a particular client.

Activities not allowed to be claimed for CPD include unofficial networking activities such as running a personal website, blog, legal commentary, or online diary; participating in career development events; giving career talks; or participating in marketing events or events directed at enhancing or developing sources of work.

3. The BSB no longer accredits courses for the purposes of CPD.

Under the new system, it is up to the individual barrister to determine their own needs and the relevance of the courses, lectures, seminars, and other events and activities that they undertake. No formal accreditation is required of commercial or non-commercial providers of courses for the CPD for the Bar.

This also means that providers will no longer be able to use the BSB logo, state or otherwise imply that their courses are accredited and quality assured by the BSB to a certain standard, including fitness for prupose and/or value for money.

The complete report of the Working Group is 112 pages and will take some additional time to review. I'm sure additional posts will be forthcoming once I've had a chance to more completely digest the information.

Mandatory Maryland? Maybe!

 
Yesterday I spoke with Judge Lynne Battaglia's (Court of Appeals, 3rd Appellate Circuit) office and received an update on the pending proposal to require CLE for Maryland attorneys.

Last year, a proposal was submitted which would require Maryland attorneys to complete 10 credits, including 2 professionalism credits each year. The suggested effective date was January 1, 2011.

In November Judge Battaglia told me that the proposal had not yet been brought before the court. Instead, a survey of Maryland attorneys was planned to get more information on what CLE these members were already taking, how they were taking them, etc. Upon completion and review, the proposal would be scheduled for hearings and a vote was likely in the spring of 2011. The suggested effective date would not be put into effect.

The Court has moved forward with this plan. In January, they surveyed members of the Maryland Bar. The results are currently being compiled for review and a hearing date will be set once this is complete. 

With approximately 22,100 licensed and active in Maryland, the new rules would impact a large number of attorneys.

Connecticut to Go Mandatory?

 
Connecticut may soon be the latest state to join the list of those requiring mandatory continuing legal education of its attorneys. Currently only Connecticut, Maryland, Massachusetts, Michigan, and South Dakota do not have a CLE requirement.

This isn't the first time the idea was introduced. In 2007, the Connecticut Bar Association's (CBA) House of Delegates approved a proposal for a mandatory CLE requirement. At that time, the New Haven County Bar Association (NHCBA) performed two in-depth email surveys and held town meetings to obtain member feedback, and in August of 2008 submitted a letter and documentation to Justice Peter Zarella indicating the majority of members' negative point of view on the proposal.

The NHCBA officers met with CBA leadership on May 9, 2011 to talk about how to work together on the concept of introducing MCLE to the Connecticut legal community. The CBA plans to reintroduce the 2007 MCLE Proposal to the Rules Committee within the year and is asking the metro county bars for input and assistance in crafting an appropriate framework for the program.

Maryland is also exploring the idea of adding a mandatory CLE requirement for its attorneys. Look for another post soon with an update.

Review of State Regulators - Sites with Program Listings Available to Attorneys (Western US)

 
A few weeks ago, I wrote a post about the new New Jersey website and its functionality for attorneys searching for accredited CLE programs. Since that time, I have audited the other states to see what they offer attorneys to assist with locating CLE programs.

This post will summarize the Western US states, with post two (later this week) summarizing the Eastern US.

Alaska: No public listing available.

Arkansas: No public listing available.

Arizona: No public listing available.

California: No public listing available.

Colorado: There are several PDF documents, which are not comprehensive or searchable.

Hawaii: No public listing available.

Iowa: Searchable by provider, dates, ID, keyword, title, location, credit type, field of practice, format.

Idaho: Searchable by provider only, then given choice of subcategories for on demand; by date range only for live.

Illinois: Searchable by provider, date, title, keyword, cost, delivery method, location, credit hours and types, skill level, area of law.

Kansas: Searchable by date range for basic search. Advanced search allows provider drop down and date range. Must always use date range in combination with other search criteria.

Louisiana: Separate searches for live and technologically assisted. Searchable by date range, location, type of law. There is no search option for provider.

Minnesota: Searchable by event code, title, date range, location, and credit type.

Missouri: No public listing available.

Montana: PDF document of live courses, not searchable.

North Dakota: No public listing available.

Nebraska: Searchable by provider, dates, ID, keyword, title, location, credit type, field of practice, format.

New Mexico: List of courses available, no search criteria. Defaults to live courses. Use Browse by Subject to get a list of self-study courses.

Nevada: No public listing available.

Oklahoma: No public listing available.

Oregon: Searchable by title, location, sponsor, date, credit type.

Texas: Searchable by course number, title, sponsor, date, ethics hours, type of law, course format.

Utah: Master calendar of events for live courses.

Washington: Searchable by date, activity number, sponsor, title, location.

Wisconsin: Searchable by date range, location, format.

Wyoming: Searchable by date or keyword only.

Electronic Distribution of Program Materials - The Regulators Weigh In (UPDATED)

 
Having recently returned from Topeka, Kansas and the Kansas CLE Commission's Provider Conference, I was excited to see that Kansas has enacted a new rule, effective July 1, 2011 that will formalize the acceptance of electronic distribution of program materials. I was curious to see where other states weighed in on this issue and was happy to see that almost all states will accept electronic distribution of materials.

To audit the rule, I emailed each state and asked:

Under your rules requiring written materials, either formally or informally in practice – is electronic distribution acceptable? Are there any timing or other requirements that would be effective with the distribution of electronic materials, such as having copies available for those requesting?

I've attached a table below outlining the rules for each state, responses coming directly from the regulators themselves. Note that Utah and Wisconsin do not, as a normal course of accreditation, accept electronic delivery, but all other states from whom responses were received will. There are a few states from whom I'm still awaiting a response.

States	Electronic Distribution of Program Materials
Alabama	Acceptable if distributed at or before program, and hard copy made available upon request. When electronic distribution is used, the sponsor should provide an outline form of the program so that the participant may follow along with the presenters and have room to take notes on each segment.
Alaska	Allowed. No formal policies regarding timing or hard copy distribution.
Arizona	Acceptable if distributed at or before program, and hard copy made available upon request.
Arkansas	Acceptable if distributed at or before program, and hard copy made available upon request.
California	Allowed. No formal policies regarding timing or hard copy distribution.
Colorado	Allowed. No formal policies regarding timing or hard copy distribution.
Connecticut	Non-MCLE
Delaware	Allowed. No formal policies regarding timing or hard copy distribution.
Florida	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Georgia	PENDING RESPONSE FROM STATE
Hawaii	Allowed. No formal policies regarding timing or hard copy distribution.
Idaho	Allowed. No formal policies regarding timing or hard copy distribution.
Illinois	Acceptable if distributed at or before program, and hard copy made available upon request.
Indiana	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Iowa	Allowed. No formal policies regarding timing or hard copy distribution.
Kansas	Acceptable if distributed at or before program, and hard copy made available upon request.
Kentucky	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Louisiana	Allowed. No formal policies regarding timing or hard copy distribution.
Maine	Allowed. No formal policies regarding timing or hard copy distribution.
Maryland	Non-MCLE
Massachusetts	Non-MCLE
Michigan	Non-MCLE
Minnesota	Allowed. No formal policies regarding timing or hard copy distribution.
Mississippi	Electronic format is acceptable in lieu of printed materials as long as the attorney consents to receive such material. Printed materials must be made available to those attorneys for whom the electronic format is not satisfactory.
Missouri	Allowed. No formal policies regarding timing or hard copy distribution.
Montana	Allowed. No formal policies regarding timing or hard copy distribution.
Nebraska	Allowed. No formal policies regarding timing or hard copy distribution.
Nevada	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
New Hampshire	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
New Jersey	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
New Mexico	Allowed. No formal policies regarding timing or hard copy distribution.
New York	Determined on a case-by-case basis, but generally acceptable if you know who your audience will be (registration based) rather than walk-in (requires hard copy). Hard copy must also be made available upon request.
North Carolina	Allowed. No formal policies regarding timing or hard copy distribution.
North Dakota	Allowed. No formal policies regarding timing or hard copy distribution.
Ohio	Acceptable if distributed at or before program. Upon attendee request the sponsor shall make the materials available in written form prior to the activity.
Oklahoma	Allowed. No formal policies regarding timing or hard copy distribution.
Oregon	Allowed. No formal policies regarding timing or hard copy distribution.
Pennsylvania	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Rhode Island	PENDING RESPONSE FROM STATE
South Carolina	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
South Dakota	Non-MCLE
Tennessee	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Texas	Allowed. No formal policies regarding timing or hard copy distribution.
Utah	Not generally accepted. Electronic distribution may be used, but during the actual course the attorney must be provided with printed written materials. The Utah MCLE Board of Directors may be reviewing this rule in the near future.
Vermont	Allowed. No formal policies regarding timing or hard copy distribution.
Virginia	Acceptable if distributed at or before program, and hard copy made available upon request.
Washington	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Washington DC	Non-MCLE
West Virginia	Acceptable if distributed at or before program. No formal policy that hard copy be made available upon request.
Wisconsin	Determined on a case-by-case basis, no blanket policy on the acceptance of written materials.
Wyoming	Allowed. No formal policies regarding timing or hard copy distribution.

From the Kansas CLE Commission - Meeting the Challenges of CLE in 2011*

*From Shelley Sutton, Executive Director, Kansas CLE Commission, for immediate distribution:

Kansas is poised to see the most extensive revision of continuing legal education rules since the original adoption of mandatory CLE in 1985. Effective July 1, there will be a more streamlined and user-friendly set of rules that take into consideration technology that wasn’t even a thought when the rules were initially adopted. The annual requirement remains 12 hours of CLE credit, including 2 hours of ethics and professionalism credit, each compliance period.

Attorneys will see the most extensive changes in five major areas:

(1) INSTRUCTIONAL MATERIALS
Under the new rules, the requirement to provide instructional materials can be satisfied by receiving printed copies or copies stored on electronic media, CD or via download.  The materials still must be delivered before or at the program.  If the provider does not provide printed copies to all attendees, they must make printed copies available to any attendee who requests them.  

(2) NONTRADITIONAL PROGRAMMING
Nontraditional programming is defined as a program accessed solely by an individual attorney (one attorney/one computer/one telephone).  These types of programs have been grouped into the following categories:

• Live transmission -teleconference, videoconference or webconference,
• Pre-recorded video - videotape, video CD, DVD, videofile, or online video,
• Pre-recorded audio - audiotape, audio CD, podcast/mP3, or online audio.

The provider still must submit the Application for Approval of Nontraditional Activity but the application can be submitted anytime during the compliance period.   In addition, the provider must have procedures in place to independently verify completion of the program but those verification procedures may vary. 

How does nontraditional programming differ from self-study?  It is the verification of the completion of the program, whether by teleconference or other format.   Self-study without verification is not accreditable.

Nontraditional attendance is still limited to 5 hours per compliance period. 
 
(3) ETHICS AND PROFESSIONALISM (EP credit)
What was previously known as professional responsibility will now be referred to as ethics and professionalism.  At least two hours of the 12 hour requirement must still be completed in this area. 

Ethics refers to the standards set by the Kansas Rules of Professional Conduct with which attorneys must abide to remain in good standing as members of the Kansas bar.

Professionalismis conduct consistent with the tenets of the legal profession as demonstrated by a lawyer’s civility, honesty, integrity, character, fairness, competence, ethical conduct, public service, and respect for the rule of law, the courts, clients, other lawyers, witnesses and unrepresented parties.  Also included in the definition of professionalism is the promotion of racial, gender and ethnic diversity in the legal professionalism.  The general goal of including professionalism as accreditable CLE is to create a forum in which lawyers, judges and legal educators can explore and reflect upon the meaning and goals of professionalism in contemporary practice. 

Ethics and professionalism issues included as part of another topic does not qualify for EP credit and must be in an identifiable block of time on the program agenda.

The Commission occasionally receives applications for approval of ethics credit that do not pertain to the ethics or professionalism issues specifically applicable to attorneys.  These programs may meet the requirements for general CLE credit, but are not eligible for EP credit. Examples of topics that would not qualify for EP credit would be:  ethics in government, litigation tactics, or business, corporate or medical ethics.  These topics would qualify for general CLE credit.

(4) LAW PRACTICE MANAGEMENT (LPM Credit)
Beginning July 1, attorneys have the option to earn up to 2 hours of law practice management credit each compliance period.  This is not a requirement but an option.  It is important to note that the course must focus on the legal profession.  Supreme Court Rule 802(j) defines LPM as “programming specifically designed for lawyers on non-substantive topics that deal with means and methods for enhancing the quality and efficiency of an attorney’s service to the attorney’s clients.”

Topics may include issues relating to the development and management of a law practice, including client relations and technology to promote efficient, economical and competent delivery of legal services; technology, or economics.  Programming accreditable under the ethics and professionalism requirement is not subject to the 2 hour law practice management cap.

(5) ONLINE OPTIONS
Attorneys will notice changes to their online record.  The transcript will eventually allow up to four compliance periods to be viewed at one time. The attorney record will also indicate any fees owed.  For the first time, attorneys will be able to easily pay their annual CLE fee online using a secure link from their CLE record.  Attorneys must have registered for online access to their record to take advantage of this option.   

ADDITIONAL NOTES FROM THE CLE COMMISSION

FILING CREDIT
For traditional programming, the provider or the attorney may submit the Application for Approval of CLE Activity.  Our recommendation for programming attended outside the state is that the attorneys file all paperwork directly with our office.  The application is a very quick and simple form. 
Kansas is an affidavit-based state.  A notice of accreditation/affidavit is executed after each program.  Providers hosting a program within the borders of Kansas will submit the affidavit for the attorneys.  If the program is outside of Kansas, even Kansas City, Missouri, it is the attorney’s responsibility to return the form to our office to be recorded in their file.  If the attorney has registered for online access, and the hours are filed as required, they will be able to review the file anytime at www.kscle.org. 

CLE COMMISSION WEBSITE
Attorneys are able to access all CLE related information at www.kscle.org.  There are links to the rules, guidelines, forms, calendar and transcripts. 
The calendar will show any programs that have been approved for Kansas CLE credit.  Attorneys can attend programs anywhere in the world but an Application for Approval of CLE Credit must be submitted by the sponsor or an attorney.  The CLE Commission does not maintain specific information on each program.  If a program is listed on the CLE Commission calendar, the attorney will need to contact the provider for specific information.  There is a phone number on the calendar and a link to the website where available. 

Change is good and these changes will help us all meet the challenges of CLE.  If you have questions, as always, please don’t hesitate to contact us. 

Kansas CLE Commission
Phone: (785) 357-6510
www.kscle.org

Update III: Group Viewing of Nontraditional Programming in Kansas - In-House Credit or Traditional Credit?

 
In Kansas, nontraditional programming (which I discussed in the last post "Kansas Rule Change Update Part II: Nontraditional Programming") is defined as "a program accessed solely by an individual attorney" (KS SCT Rule 802(k)). If, however, a group of attorneys privately gets together to watch a nontraditional program, under the Kansas rules this becomes an in-house program and the application must follow the rules for in-house programming.

In-house programming is defined as "programming given for a select private audience from the same law firm, corporation, or single government entity, and not open for attendance by other members of the legal community generally." Credit for in-house programming is limited to 5 credits per compliance period.

What does this mean for a provider such as West LegalEdcenter and our attorney subscribers?

If an attorney watches a webcast or an on demand recorded program online at his or her own desk - the approval that West LegalEdcenter has obtained allows us to issue the attorney a Certificate of Completion. If, on the other hand, a group of attorneys at a firm wishes to get together in a conference room and watch a webcast together - the firm is now the sponsor of the program and has to get in-house approval for that viewing. In-house applications must be received 30 days prior to the activity and include the date, time, and place of the activity. This also makes the firm responsible for the application, issuing of certificates, and all other tracking required to offer credit.

One other way that nontraditional programming may be converted under the Kansas rule is through the distribution of the program in a traditional classroom setting. If the program is open and advertised, located in a central location, and has a moderator connected, in-person or via telephone or email, to comment and answer questions, the nontraditional program would be converted to a traditional program and those rules for accreditation would then be in effect. Traditional programming credit is not capped for Kansas attorneys - each can earn all of the required credit through this type of programming.

Look for at least one more post on the Kansas Provider Conference - Kansas is now allowing credit for Law Practice Management courses!

Kansas Rule Change Update Part II: Nontraditional Programming

 
The most significant changes in the Kansas rules, announced earlier this week at the Kansas CLE Commission's Provider Conference, come in the area of "Nontraditional programming". Changes in the rules are meant to reflect the growing number of new formats now available - formats that were not even contemplated when the Kansas MCLE rules were first adopted in 1985.

A Nontraditional program is defined by the rules (KS SCR 802(k)) as "a program accessed solely by an individual attorney". Kansas includes teleconference, internet-based conference, audio tape, video tape, CD, podcast, CD-Rom and DVD among the formats covered, although this list is not meant to be an exclusive definition of acceptable formats.

Nontraditional programming differs from self study as nontraditional encompasses verification of completion. Self study programming is not accreditable per KS SCR 806(m).

Kansas has grouped nontraditional programming into three categories:

• Live Transmissions - teleconference, videoconference, webconference, live webcast
• Pre-recorded Video - video tape, video CD, DVD, video file, online on demand video
• Pre-recorded audio - audio tape, audio CD, podcast/mp3/audio file, online on demand audio

Sponsors must have procedures in place to independently verify completion of the program - these may vary by format and provider. The provider must consider the format in which a CLE program is offered in order to design an appropriate verification procedure. The Commission will consider approval of all methods of independent provider verification when determining accreditation of a course. Kansas will also be doing periodic audits of verification procedures for all categories.

Under the old system, a provider had to submit the application for approval of an alternative delivery method 30 days prior to the activity. Under the new rules, the application can be submitted any time during the compliance period. The provider must still submit the application - individual attorneys may not apply for credit for nontraditional programs.

Applications for programming in the live transmission category must be submitted with a $25 application fee. As always, repeat dates for identical programs may be listed on one application. For pre-recorded formats, a $100 application fee is required. A separate application must be submitted for each format for which approval is sought. For example, if a program is made available online on demand video and also as a podcast- that would require the submission of two separate applications. The new application forms will be available on the Kansas website soon.

Approvals for pre-recorded formats are good throughout the compliance period, expiring on June 30 of the current period. Applications may be submitted to reaccredit a program in subsequent compliance periods, as long as the content remains current. Kansas has not defined a specific shelf-life rule and it is up to the provider to determine if the content is outdated.

Nontraditional attendance is limited to 5 hours per compliance period. If, for example, a nontraditional program is 8 hours, the maximum attendance an attorney may apply to the compliance period is 5 credits.

My next Kansas Rule Change Update post will cover group viewings, where Kansas takes a very different approach than most other states.

Kansas Rule Change Update Part I: Instructional Materials

 
Kansas is making a change that many providers and attorneys have been seeking - the acceptance of electronic distribution of materials. This saves the environment (paper and waste), money (printing and shipping), and space in  an attorney's office or suitcase.

Materials will still be required. Shelley Sutton, Executive Director of the Kansas CLE Commission, explains that there are three main reasons for requiring materials:

• Ensures thorough course preparation by provider and presenter
• Ensures attorneys receive materials that are useful after course completion
• Allows the regulator to evaluate the quality and nature of the course when the application nor agenda provide sufficient information about course content

This will not change. But under the new rules, the requirement to provide instructional materials can be satisfied either through the traditional delivery of hard copy documents OR through delivery in electronic media, CD, flash drive, or via download.

As under the current rules, materials must still be made available to participants either before or at the program. Sending a link after the event or mailing the materials later will not suffice. Even providing the participants with the link at the event would likely meet the requirement, but perhaps would not satisfy the attendees. The state does recommend providing links to the material before the event in case an attendee wants to print out materials to bring to the event.

If a provider is distributing materials in electronic format only and not providing printed materials to all attendees, they must still have a few printed copies available for any attendee who requests them.

I am very happy to see Kansas formalizing the availability of electronic distribution of materials. Hopefully, other states will follow suit!

My next post will explore the changes to the nontraditional programming rule in Kansas - where the biggest changes to the rules reside.

I Don't Think We're In Kansas Anymore: Kansas Rule Changes Mean More Options for Attorneys

 
Just back from Kansas and the CLE Commission's Provider Conference. It was a great experience to talk with the regulators, board members, other CLE providers, and firm PD staff. The weather was glorious - sunny and 70's. The landscape is green. We got a sporty red car - no convertibles available unfortunately (or maybe, based on my previous post, fortunately?).

Announcing the most sweeping changes in their rules since the original adoption in 1985, the changes focus on four major areas:

• Instructional materials
• Nontraditional programming
• Ethics and professionalism
• Law Practice Management

Over the next several days I'll be recapping changes and the impact these changes will have on attorneys and providers. The rule changes will become effective on July 1, 2011.

 

Do You Know the Way to San Jose - or Topeka?

 
Kansas has recently announced changes to their MCLE rules, effective July 1, 2011. The state's CLE Commission is hosting a Provider Conference to ensure understanding of these changes and how they will affect attorneys. They will also be available to answer questions from providers. The conference is being held in Topeka on April 12, 2011 at the Capitol Plaza Hotel. Preregistration is required.

Changes to the rules include new opportunities for nontraditional programming and expansion of the written material requirement to include electronic media. 

AGENDA

• 8:30-9:00am: Registration/Continental Breakfast
• 9:00-9:15am: Opening Remarks/Introductions
• 9:15-9:30am: CLE Resources, including the Official MCLE CLEreg Guide
• 9:30-10:00am: Kansas CLE Rules Overview, new rules effective July 1, 2011
• 10:00-10:15am: Networking Break
• 10:15-11:00am: Roundtable discussions on implementing the new rules and other CLE questions
• 11:00-12:00pm: Report of roundtables and panel discussion with members of the Kansas CLE Commission
• 12:00-12:15pm: Final thoughts 

I will be attending the conference and will report back on the announced changes and their impact. Let me know if you are not able to attend and have any questions for the Commission - I'd be happy to pass them along!

 

New Mexico Modifies Professionalism Requirement

 
The Supreme Court of New Mexico has approved amendments to the state's MCLE Rules effective May 1, 2011 for the compliance year ending December 31, 2011, and subsequent compliance years.

The annual credit requirement has been changed to 12 credits including 2 Ethics/Professionalism credits.  There is no longer a separate professionalism credit requirement. Previously, attorney were required to complete 1 ethics credit and 1 professionalism credit each year. Additionally, up to 2 credits of EP will now be allowed as carryover.

Attorneys have the option of completing board approved courses dealing with legal ethics or professionalism.  Attorney online MCLE records will display the new credit requirement as EP.

Seminars dealing with the disciplinary rules or ethical considerations applicable to attorneys receive EP credit. Stress management, client billing, substance abuse awareness and action, quality of life issues and elimination of bias also qualify for the EP credit. All programs must be primarily intended for attorneys, not a general audience.

Now Easier for Attorneys To Find Your New Jersey-Accredited Programs!

 
Last month, the Supreme Court of New Jersey Board on Continuing Legal Educationlaunched a new website for providers and attorneys. This search-able database lists programs approved for New Jersey credit in an easy-to-use format.

Allowing attorneys to find programs, they may search based on many criteria, including:

• Key word or topic
• Course dates
• Location
• Number of credits offered
• Format
• Provider
• Law category

 
Once a course of interest in found, additional information, such as ethics or specialization credit available, is also listed.

As an approved provider with more than 8,000 courses listed, I certainly appreciate the state making this resource available. When attorneys begin utilizing the site to find courses and providers who are offering CLE credit approved in New Jersey, this is free, but effective, advertising.

New Jersey MCLE Announces Online System

 
From the Supreme Court of NJ Board on Continuing Legal Edcuation Website:

As of January 28, 2011, the Board on Continuing Legal Education is moving to its new on-line computer tracking system.  Providers should be able to access this new system on or before February 18, 2011.  Please note that the pdf applications will no longer be available in the future.  Any provider applications or course announcements submitted by mail will be returned.

Existing approved service or per-course providers
Those providers who have already submitted courses to New Jersey will receive a letter with information on how to access the system with a user ID and temporary password.  PLEASE DO NOT CREATE A NEW ACCOUNT.  Once you activate your account, you will have the ability to submit all applications on-line.

New providers
For providers who have not previously submitted an application for course or provider accreditation in New Jersey, please go to the appropriate link to begin the provider registration process.

Illinois Increases Professional Responsibility Credit Requirement

 
From the Illinois MCLE website: by Order entered October 1, 2010, the Supreme Court of Illinois has amended its MCLE Rules to increase the number of required professional responsibility credits to a minimum of six hours. This change applies to all reporting periods that end June 30, 2012 and thereafter.

This change does not apply to the N-Z attorney reporting period July 1, 2009 through June 30, 2011. For that reporting period, an attorney needs to earn at least 24 hours of MCLE credit, including at least four hours approved for professional responsibility credit.

Beginning with the July 1, 2010 through June 30, 2012 reporting period for attorneys with last names beginning A-M, and for all reporting periods thereafter, the general MCLE requirement is 30 hours, including a minimum of six hours of professional responsibility credit. See MCLE Rule 794(d)(1).

Vermont Accepting Comments Hoping to Make the Rules Clearer - Yes, Please!

 
As someone who considers herself rather well versed in the rules of MCLE - the volume of pages of rules, regulations, FAQs, interpretations, comments etc. from over 45 regulatory agencies can certainly be overwhelming, even to me.

Complicating this further is the often confusing language of the rules themselves. This is especially true when states require attorneys to complete credits in ethics AND in professionalism. As my friend Tim Baran (barancle.com) points out in his latest post: "Vermont to Clear up Confusing Ethics vs Professionalism CLE Rules for Lawyers" - in at least one case, the state is acknowledging the confusion.

On September 15, 2010, the Vermont Continuing Legal Education Board issued a memo to the bar which stated in part:

Given the breadth of the language of Rule 3(b), the Board is cognizant that there may not be enough guidance as to what constitutes professionalism study versus ethics study.

Now accepting comments, Vermont hopes to better understand attorneys' reaction to the professionalism rule. It is also seeking comments regarding the current library of professionalism courses available to attorneys, including those already completed.

Be sure to let attorneys licensed in Vermont know about the open comment period by sending communications to JUD-AttyLicensing@state.vt.us.

Clarification will certainly be welcomed by me! It may even be beneficial to other states (Georgia, Louisiana, New Mexico, Ohio, and Utah) which have a similar requirement that attorneys complete courses in both categories. Watch here for more details as they become available.

Proposed MCLE Rule Changes in Kansas - Comment Period Through 9/15

The Kansas Continuing Legal Education Commission, along with the Rules Review Task Force, have recommended changes to the MCLE Rules governing attorneys in Kansas. They have provided a summary of the changes, which include:

• Expanding approval for non-traditional programming
• Allowing for programs accessed solely by an individual attorney, (maximum of five credits per compliance period) including:
• • Teleconference  
  • Internet-based conference  
  • Audiotape  
  • Videotape  
  • CD  
  • Podcast  
  • CD-Rom  
  • DVD  
• Additional two-hour option for law practice management programming
• Professional Responsibility renamed Ethics and Professionalism
• Additional approval of non-substantive diversity and elimination of bias programming in the ethics and professionalism category

Many of these changes will make it easier for attorneys to fulfill their requirements, especially with non-traditional formats.

Please encourage those affected by these proposed changes to weigh in with their opinions. The Commission is accepting comments until September 15, 2010. Contact:

 Shelley Sutton
 Executive Director
 Kansas Continuing Legal Education Commission
 400 S. Kansas Avenue, Suite 202
 Topeka, Kansas 66603
 cleadmin@kscle.org

I Have an MCLE Question - Now What?

The MCLE Rules are varied and complex - and often confusing - especially when a provider has to deal with rules in more than one jurisdiction. As a provider you will have questions - there is no doubting that! But where do you go for answers?

Each state MCLE authority has a website, but the amount of information and the ease with which you will find answers on these sites varies as much as the rules themselves. To find the state sites, there are a couple of very good resources:

CLEReg- The Continuing Legal Education Regulators Association is an organization which provides administrators of MCLE programs an opportunity for discussion and exchange of information. Their site is also helpful for providers as there is much information - samples of Applications and Certificates of Attendance, rule summaries, requirements for applications, etc. One note: the site information is not updated frequently so be sure to check individual state websites for current data. The CLE Administrators Directory contains contact information for each state and includes a link to each state's own website.

Two more sources for finding the links to each state's own website are from my sites: West LegalEdcenter and Reqwired. Both sites have resource sections which include links. West LegalEdcenter's will be found under State Requirements, and Reqwired under Resources, then CLE Rule Summaries.

Reqwired's CLE Rule Summaries may also provide a source for answering your MCLE question - but the same note applies here: while we try to maintain the rule summaries for currency, please always check the state's own rules as well to verify.

Once on the state MCLE regulator's website, I usually look first to the home page. Often the state will highlight recent changes or provide clarifications here. I've gotten lucky more than once that the answer to my question was the first place I looked!

Next I search the FAQs. These pages really do provide answers to many of the most frequent questions. Many states actually provide a separate FAQ for attorneys and providers. Don't forget to check the attorney FAQs as this may answer your question as a provider as well.

If the FAQs don't provide enough assistance, I go next to the rules and the regulations themselves. While I consider myself very familiar with these documents, there is no way I'm going to remember the specific details of all of the rules and regs for every state. If I could, my boss would have to pay me a whole lot more!

If, after reviewing the state website, the FAQs, the rules, and the regulations, you still have questions - go directly to the source! The regulators themselves, as well as the staff at the MCLE authorities, are the best resources. And they are very responsive, generous with their time, and willing to find out if they can't immediately answer the question. While I go to other sources first in order to ensure that the answer wasn't easily available to me, I know that if I can't find the answer they will always help. 

New Jersey CLE New Admittee Requirement: What Does it Mean?

I've received many questions about the new admittee requirements in New Jersey, and wanted to do a post to help clear up some of these inquiries.

New Jersey Regulation 201:2 states: “Additional mandatory requirements for newly admitted lawyers. During a newly admitted lawyer’s first compliance period after admission to the Bar of New Jersey, the newly admitted lawyer must satisfy 15 of his/her 24 required credit hours in any five of the following nine subject areas:

• New Jersey basic estate administration;
• New Jersey basic estate planning;
• New Jersey civil or criminal trial preparation;
• New Jersey family law practice;
• New Jersey real estate closing procedures;
• New Jersey trust and business accounting;
• New Jersey landlord/tenant practice;
• New Jersey municipal court practice; and
• New Jersey law office management.

A lawyer who has completed at least the first full year’s requirements of the Skills and Methods Course will be considered to have met the additional requirements for a newly admitted lawyer.”

Of those 24 credits, not less than four credits must be in ethics and/or professionalism.

A newly admitted attorney is an attorney who has been admitted to the practice of law in New Jersey in the previous year. The attorney’s first compliance period would begin on January 1 of the year following admission.

Because compliance periods are determined by birthdate, each year one Group will have a shortened compliance period in order to report in the proper timeframe. The requirements for newly admitted attorneys are also adjusted to reflect the shortened compliance period.

If an attorney has a one year compliance period, the attorney must complete a total of 17 credits by the end of the year. The newly admitted lawyer must satisfy 15 of his/her 17 required credit hours in any five of the following nine subject areas:

• New Jersey basic estate administration;
• New Jersey basic estate planning;
• New Jersey civil or criminal trial preparation;
• New Jersey family law practice;
• New Jersey real estate closing procedures;
• New Jersey trust and business accounting;
• New Jersey landlord/tenant practice;
• New Jersey municipal court practice; and
• New Jersey law office management.

Of those 17 credits, not less than two credits must be in ethics and/or professionalism.

Credits for alternative verifiable learning formats are limited to ½ of the requirement for any period. If the attorney has a shortened period and requirement, the attorney may only claim credit for ½ of the total credits required – 8.5 credits for newly admitted attorneys with a one year compliance period.

Group 1: Birthdays Jan 1-June 30
Group 2: Birthdays July 1-Dec 31

 
 

New Jersey CLE: Live vs. Alternative Format Credit for Group-Viewed Webcasts

For those of you who had a chance to join Wendy Weiss, Counsel for the New Jersey Board on CLE and I last Tuesday, June 22nd for our rules review, many providers received a “bombshell” type announcement – groupcasts or group viewings with a moderator would not be considered “live” credit for purposes of New Jersey CLE. This may be contrary to what many of us had been told previously.

In order to ensure that I understood the limits and credit types which we as a provider could offer, I asked for additional clarification from Wendy. Below is her response.

But to summarize: For live credit to be offered, the speaker must be in the same room as the participants. The only exception will be for attendees viewing the program from an overflow room in the same location as the live event (participants could walk into the live room with the speaker to interact and ask questions as any attendee in the same room with the speaker).

In all other situations, the speaker and attendees must be in the same room to be live credit. If a provider is offering a webcast to additional locations, even if a moderator is available to facilitate questions and discussion, the additional locations are offering an “alternative verifiable format” course.

I hope this clarification helps other providers and the New Jersey attorneys to whom we are offering credit. I believe this is an area that the Board will continue to review, especially if they receive feedback from New Jersey-barred attorneys who wish to have this policy changed. The review of the rules is now available as a complimentary on demand program.

From: Wendy.Weiss@judiciary.state.nj.us[mailto:Wendy.Weiss@judiciary.state.nj.us]
Sent: Friday, June 25, 2010 4:54 PM
To: Roers, Gina (Legal)
Subject: Re: Confirm Correct?

Gina.. please be advised that in NJ currently, a course is live if the instructor is in the room with the participants.  if the course is given through teleconference, webcast, videoconference, simulcast, even if interactive and in real time, it is not considered live... it is considered alternative format.  at this point, having someone in the alternative locations to answer additional questions to those in the alternative sites will not turn the course into a live event...
I understand this is a subject of great concern to law firms... this is the current policy of the Board.

Wendy L. Weiss, Esq.
Counsel, NJ Board on Attorney Certification
Counsel, NJ Board on Continuing Legal Education
PO Box 970
Trenton, NJ 08625
609-984-3077 (BAC)

609-633-9733 (CLE)
609-396-9056 (FAX)

New Jersey's New MCLE Rules Explained!

Confused about New Jersey's new MCLE rules and what they mean for you or for your attorneys? Join Wendy Weiss, Counsel for the New Jersey Board on Continuing Legal Education, for a free webcast as she provides an overview of the rules and requirements related to the MCLE rules in New Jersey. On June 22, 2010, I will interview Wendy and then lead a question and answer segment where you can get your questions answered by the person most in the know!

Topics covered will include:

• MCLE Overview
• • Requirement - What does a New Jersey licensed attorney have to do?  
  • Exemptions - Who is exempt from completing MCLE?  
  • Dual Barred Attorneys - What if an attorney already complies with another state's MCLE requirement?  
  • Compliance Period Calculation - When do attorneys have to complete the requirement?  
  • New Admittee Requirement - What are the requirements for newly licensed attorneys?  
  • Reporting - How will compliance be reported?  
• Earning Credits
• • What types of activities count for credit?  
  • What types of activities do not count for credit?  
  • What if the course taken is not accredited in New Jersey?  
• MCLE Providers
• • How does a provider get a program approved for credit?  
  • Can a provider become approved for all courses offered?  
  • Do providers have reporting requirements?  
• Question and Answer Period

This program will be available as a complimentary on demand program and a downloadable podcast following the live webcast.

For more information, or to register now, click here.

Quick Note: Missouri Annual Report Form

Just a quick addition to yesterday's post - the form is now available on the public, non-member site as well.

Missouri Annual Report - Updated for 2009-2010 Compliance Year Now Available

We've been watching for the release of this form for many months, as the rules in Missouri have recently changed, requiring ethics/professional responsibility credits to be earned each year (rather than the previous requirement of every three years). As the requirement changed, so too, would the report necessary for reporting the requirement. The new form, available on the member MCLE site, can also be found here.

MCLE Jurisidictions and Reciprocity - Is it Available?

A few weeks ago, I wrote a blog post about New Jersey’s reciprocity rule, something about which I’d received many questions. Hopefully the post cleared up some of the confusion that providers and attorneys had regarding the rule.

I’ve recently received a question about reciprocity more generally across the MCLE jurisdictions: How, without contacting each and every state, does one find out if a state accepts credits approved elsewhere?

Reqwired, a software platform that provides MCLE compliance tracking and a learning management system, is owned by Thomson Reuters Legal, the company for which I work. We maintain a resources bank of information, free and available to the public. For each MCLE jurisdiction, we have listed the rules and requirements in a standard format, so that an easier comparison may be done across multiple states. For each rule summary, the information is presented in the same way.

We have also built a reciprocity table, which details how the states which do allow for some reciprocity accept credit. The table also lists which states have no reciprocity rule. One thing to note (and we have tried to include this in the table), is that while there may be a reciprocity rule in place for the state, an application or evidence of certification may be still be required.

As you can see by the table, for the vast majority of MCLE jurisdictions, no reciprocity exists. A provider must apply for and receive separate approval from each state in which it wishes to grant credit.

More New Jersey MCLE Rule Clarifications - Transitional Period Credits

I've had some great conversations with many of my readers regarding the New Jersey MCLE Rules. If nothing else, the rules have allowed me to introduce my blog to a number of new CLE professionals!

The latest question about which providers and attorneys have asked deals with the transitional period that attorneys in Group 2 (Birthdays from July 1 to Dec 31) will experience. As this group reports in odd years, their first reporting date is March of 2011. This means that they must complete their requirement by December 31, 2010.

The rules require attorneys subject to this transitional period to complete half of the regular MCLE requirement - 12 credits, including 2 ethics and professionalism credits.

The question that I have been asked about this period relates to how many alternative verifiable format credits may be taken. For the regular two-year compliance period, an attorney may only recieve 12 credits for this format type. This is 1/2 of the requirement.

I have confirmed with the regulators that only six (6) credits may be claimed for alternative format courses in the transition period - in other words, 1/2 of the requirement for the period.

Thanks to all who have written or commented on this topic!

New Jersey MCLE and the Reciprocity Rule

I have been getting many questions and comments about my recent posts on the New Jersey MCLE requirement. I want to address one area in particular where I believe most of the confusion lies – reciprocity.

I received this comment/question in an email from a professional development director at a New Jersey firm:

Here is part of the problem: as you can see with the language below, "New Jersey
attorneys who are satisfying the CLE requirement of another state..." If the attorney is not admitted in another state and therefore has no other CLE requirement in another state,
he/she cannot get credit for the CLE in another state and by reciprocity have it accepted
 for credit in NJ. The reciprocity would only seem to apply to attorneys who are admitted
in other states and who can get CLE credit in those states.

This statement of reciprocity rule is incorrect, but I think that this is how many attorneys and CLE administrators believe the rule operates.

Actually, the confusion has been generated as there are two time periods in effect which have differing reciprocity rules.

1. The “look-back” period – January 1, 2009-December 31, 2009
2. Effective date of rules – January 1. 2010-ongoing

For the “look-back” period, attorneys can claim credit for programs taken as of January 1, 2009 if they were taking those credits to meet the requirements of another jurisdiction. This is from the notice that was issued on August 13, 2009. This notice specifically states that “courses that are taken in satisfaction of another State’s continuing legal education program” may be claimed. This ONLY affects courses taken from January 1, 2009-December 31, 2009.

The regulations, effective January 1, 2010, state that: “ALL ACTIVE LAWYERS will receive 1:1 credit for courses approved as satisfying the continuing legal educations requirements of any other jurisdiction.” (201:4, emphasis added). This means that if the COURSE is approved by another MCLE jurisdiction, ANY lawyer can claim credit for it.  There is NO requirement (unlike look-back notice) that attorneys be taking the course in satisfaction of another state’s MCLE requirement. This affects courses taken after January 1, 2010.

If you look at the FAQ on reciprocity, you’ll note they state that BOTH types of attorneys (those licensed in another state and those only licensed in New Jersey) can claim credit under reciprocity. Note the OR and statement after the OR, below (emphasis added).

What is reciprocity?

New Jersey attorneys who are satisfying the CLE requirement of another state or who take courses approved in another state will receive 1:1 credit for courses approved in that jurisdiction through reciprocity. However, attorneys should be aware that there are differences in requirements from state to state. Those attorneys must ensure that they are also meeting the requirements of New Jersey’s program. For example, New Jersey requires that four credits be taken in courses related to ethics and/or professionalism. In addition, alternate verifiable learning format courses are limited to only 12 credits in any compliance period. BCLE Reg. 201:4

Hope this helps clear up some of the confusion! Happy CLEing New Jersey attorneys!

New Jersey Rules Discussion – A Talk with the Regulator (Part II)

As mentioned in my previous post, “A Discussion on the Rules and Regulations with New Jersey – Getting to Know Wendy Weiss (Part I)”, Wendy was incredibly generous with her time, answering many of the questions I had after reading the rules, regulations, and administrative determinations. The FAQs posted to the New Jersey website were also helpful in answering questions I’d encountered. Below are some of the questions I had, and Wendy’s explanation of the answers under the New Jersey regulations.

The rules state that attorneys will be able to take “in-house” programs – those courses provided by their law firms. Is there a limit on the number of credits attorneys can get through in-house?

Attorneys will be able to get all of their credits through in-house providers. The limits established under the rules are currently only based upon format, not the content provider. New Jersey attorneys can only claim credit for 12 credits each compliance period with alternative formats – live webcasts, on demand online, webinars, teleseminars, etc. There is no limit from a provider perspective.

Currently live webcasts or synchronous programs are part of the alternative format limit in New Jersey. Other states often treat these programs as “live” and do not limit the number of credits an attorney can receive. Have you received any feedback regarding this limit?

The Board has implemented the rules with the specific limits included. They will continue to gather feedback from attorneys throughout the compliance year and with the reporting process. While they don’t currently plan to make any immediate changes, they welcome comments.

What is the proper method for determining how credits are calculated?

The credit hour is based upon a 50 minute hour, with credits rounded down to the nearest 1/10th.

Some states allow credit for other “types” of activities in which attorneys engage. Are any of the following available for credit?  Writing or publishing? Public service? Reading? Research? Pro Bono work?

Currently none of these activities is available for credit in New Jersey.

The carryover rules state that up to 12 credits may be carried forward into the next compliance period. Are there any limits on these 12 credits?

There are no limits on the type of credit that may be carried forward. Ethics credits qualify for carryover, as do alternative format credits. One note, however, is that only 12 alternative format credits may be claimed in any compliance period. If an attorney carries forward alternative format credits, the number of this type of credit which may be claimed in the next period will be reduced. For example, if an attorney carries forward 6 alternative format credits, he or she may only earn 6 additional alternative format credits.

How many credits must an attorney earn if he or she has an exemption for part of a compliance period? New York, for example, prorates the number of credits which must be earned. Is New Jersey doing the same thing?

No, if an attorney is active at any time during the compliance period, he or she is required to meet the whole requirement.

A Discussion on the Rules and Regulations with New Jersey – Getting to Know Wendy Weiss (Part I):

I recently had the opportunity to sit down and talk with Wendy Weiss, Counsel for the New Jersey Board on Continuing Legal Education and the New Jersey Board on Attorney Certification. Wendy was generous with her time despite a very hectic schedule, and patient with the barrage of questions I had regarding the new MCLE rules and regulations. Along the way I also had the pleasure of getting to know Wendy as I begin the journey into New Jersey’s CLE world.

While the mandatory CLE requirement has just become effective on January 1, 2010 for all attorneys in New Jersey, continuing education is not new to the state, or to Wendy. New Jersey has long had an attorney specialization scheme in four areas of practice (Civil Trial, Criminal Trial, Matrimonial, and Workers’ Compensation). Wendy began working for the Court in this area in 1987 in order to find a better work/life balance when she had her first child. Prior to her time with the Court, Wendy worked for the New Jersey Department of Transit and in Insurance defense with two different law firms.

As New Jersey had a “mini-mandatory” scheme already, Wendy feels that her time spent approving CLE programs will lend much to the new MCLE process. As the state was already in the business on a course-by-course basis, the extension of her team into the full mandatory requirement for all attorneys is a natural fit. She and her office will be dealing with many more providers and attorneys, but the standards and approval process will remain largely the same.

Wendy also points out the 73% of the New Jersey Bar are licensed in another jursidiction, one that most likely already has a MCLE requirement. Much of the bar is already completing CLE programming. A strong believer that learning is never a waste of time, Wendy feels that attorneys new to CLE will always get something out of the programs they now must take.

The most confusing aspect of the rules to me, at least initially, was the compliance periods for attorneys. Wendy helped me understand the periods, and what will be happening during the intial phases of the program.

Attorneys are divided into two groups based upon their date of birth. Attorneys with birthdays from January 1 to June 30 will be placed into Group 1, and attorneys with birthdays from July 1 to December 31 will be placed into Group 2. Group 1 attorneys report in even number years, Group 2 attorneys report in odd number years. Reporting will be done in March with the attorney’s Annual Attorney Registration Statement.

For the first compliance periods:

• Group 1’s first period is January 1, 2010 – December 31, 2011, with reporting done in March of 2012. The full two-year requirement is due (24 credits, including 4 ethics & professionalism).
• Group 2’s first period is January 1, 2010 – December 31, 2010, with reporting done in March of 2011. The first period will be a transitional period, with only half of the credits being required (12 credits, including 2 ethics & professionalism).

Each subsequent compliance period thereafter is every two years, with the full 24 credits, including 4 ethics & professionalism due.

In a future post, I’ll detail more of the interview and Wendy’s responses to my questions about the regulations.

New Jersey CLE Website Updated - Forms and FAQs Now Available!

This is it! What we as providers have all been waiting for - the release of the forms and fee schedules for getting programs directly approved and for becoming an approved provider!

The NJ Courts have created a very easy to use and understand web page for both attorneys seeking more information about the requirements and how they may be met and for providers who wish to get their programs approved. With additional links to FAQs for attorneys and for providers, forms for individual program approval, approved provider status, and fees, the updated site will be my home for the next few days!

Check it out and let me know what you think about the process and the fees.

MCLE Rule Changes Come to Texas June 1, 2010

Beginning June 1, 2010, the definition of “participatory” will no longer be a requirement of accreditation for CLE programs. Instead, the content of the activity will determine if the program is “accredited” – the new standard for the requirements. CLE Sponsors will be able to receive accreditation for formats from the traditional live events, to online webcasts and on demand programs, to downloadable podcasts and other non-interactive audio/video programs.

Under the current regulations, attorneys must complete 15 hours of CLE each year. Of the 15 hours, at least 10 of these must be “participatory” credits. Texas attorneys must still complete 15 hours each year, but beginning June 1, 2011, a minimum of 12 of the 15 hours must be completed through attendance at “accredited CLE” activities in order to be in compliance with the MCLE requirements. The remaining 3 hours of CLE may be completed through self-study.

For more information, see the Texas State Bar website.

Also available from the Texas State Bar are red-line versions of the changes affecting the types of programs that may be accredited, the 2011 changes to the compliance requuirements, and FAQs regarding the changes.

Summary of changes to the MCLE Regulations and Accreditation Standards

FAQ’s regarding the Changes to the 2010-2011 Regulations and Standards

MCLE Regulations Changes effective June 2010 and June 2011 (redline version)

Accreditation Standards for CLE Activities, effective June 2010 (redline version)

The Regulations are Here! The Regulations are Here!

For all of us who have been anxiously awaiting more information from the New Jersey Supreme Court since the passage of the mandatory continuing legal education requirement on December 18, 2009. The regulations are finally here!

Submitted on January 15th and passed by the Court on January 26th, the regulations detail the ins and outs of the new requirement. How, when, where, with few surprises.

Now let's hope that the forms and processes for accrediting programs - either as an Approved Provider or for individual programs -are soon to follow! Stay tuned!

New Jersey MCLE - What's a Provider to Do?

If you're interested in becoming an accredited provider in New Jersey, or simply in having programs accredited there, you may be as frustrated as me and my friend Tim Baran at www.umcle.com, who provides a great overview of the struggle we providers have faced on this topic. I highly recommend reading Tim's post, "New Jersey MCLE Transition Period. What a Mess!" for the full details.

NJ Supreme Court Seeks Comment on Proposed Change to CLE Requirements

The New Jersey Supreme Court is seeking public comment on proposed Court Rule 1:42, which sets forth the requirements for continuing legal education for New Jersey attorneys, Mark Neary, clerk of the Supreme Court, announced today. 

In conjunction with the proposed court rule, the Court has issued an Administrative Determination regarding the continuing legal education requirement.  Both the proposed court rule and the determination are the result of recommendations made by the Ad Hoc Committee on Continuing Legal Education. 

Under the proposed plan, as of Jan. 1, 2010, all New Jersey attorneys would be required to take 24 hours of continuing legal education every two years, including at least four hours on topics related to ethics or professionalism.  The requirement could be satisfied by attending classes or using other media such as videorecording, videoconferencing or online programs.  New Jersey attorneys would receive reciprocal credit for meeting equivalent legal education requirements in other states.

Those seeking to comment must do so, in writing, by Monday, Nov. 9, to the following address:

Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Comments on Proposed New CLE Rule
Hughes Justice Complex
P.O. Box 037
Trenton, NJ  08625-0037

As an alternative, comments also can be submitted via e-mail to: Comments.Mailbox@judiciary.state.nj.us.

The Supreme Court will not consider comments submitted anonymously.  Comments will be publicly available after the court has acted on the proposed court rule. 

Click here to see the Committee’s original report.