APR 11 - Mandatory Continuing Legal Education (MCLE)

• Proposed Changes to APR 11 - Mandatory Continuing Legal Education (MCLE) (in Word Format)
• Comments Received for APR 11 - Mandatory Continuing Legal Education (MCLE)

Purpose: The primary purpose for the suggested amendments to Rule 11 and Appendix APR 11 of the Admission and Practice Rules (APR) is to ensure that mandatory continuing legal education (“MCLE”) is focused on the purpose for which it was established and that it is meeting the needs of lawyers in light of the changes in the areas of education and training, the rapidly changing legal services marketplace, and the widely varied needs of Washington lawyers and their clients in the 21st century.

In order to accomplish this purpose, the Washington State Bar Association (WSBA) formed an MCLE Task Force. The task force was comprised of approximately 20 WSBA members from different backgrounds that brought a wide array of perspectives to the group. Task force members studied MCLE related articles, information relating to best learning practices and heard from several different stakeholders and experts in related fields. In addition, the task force sought and considered comments and feedback from the WSBA membership, CLE providers and the MCLE Board (the chair of the MCLE Board at the time also served on the task force). The task force members held true to the overarching purpose of MCLE and – with each issue – were able to find the balance point that all could agree on. These recommendations are the result of this collaborative, deliberative and reflective process.¹

The WSBA recommends a complete rewrite of APR 11 that is clear, concise and easy to understand for lawyers and sponsors. The new draft of APR 11 does not include any regulations, but rather simplifies and incorporates necessary provisions from the current regulations in Appendix APR 11 into the rule itself. Therefore, a traditional redline version of the changes is not practical. Instead, the WSBA presents a new APR 11 that replaces both the current APR 11 and the current Appendix APR 11 regulations. This new rule will greatly increase the lawyer's understanding of how to earn MCLE credit, assist efficient administration of the MCLE program, and provide each lawyer expanded opportunities to grow in the profession.

In addition to clarity and ease of understanding, there are four key premises on which the WSBA bases its recommendation for adoption of this new APR 11:

1. An Expanding and Diverse Bar. The Bar is rapidly expanding with a large number of newer lawyers entering the profession while older lawyers are starting to retire. These newer lawyers are generally more diverse and more technologically savvy than previous generations of lawyers. Many Washington lawyers are not engaged in traditional lawyer-client representation only. There is an increasing number of lawyers whose career options or employment are in a myriad of different legal and nonlegal professions. While these lawyers may not be practicing law in the traditional sense, they are still licensed to practice law. This suggested rule attempts to strike a balance between the needs of protecting the public and the needs of all lawyers who may or may not be practicing law but could do so at any moment in any given situation.

2. Prevention. Prevention of problems through education can have a positive impact on the practice of law. For those lawyers who need it, this suggested rule will permit lawyers to use MCLE to address lawyer-client, stress management, or office management issues. The probable result is an increase in overall client satisfaction and prevention of the types of issues that lead to lawyer discipline cases and malpractice claims.

3. Self Regulation. The WSBA has a great deal of trust and respect for the membership and strongly believes that lawyers, in terms of both a profession and as individuals, are perfectly capable, and should be able, to choose the education that best suits their needs for their particular situation. Learning something relevant to one’s situation is one of the key factors for successful learning. The recommendations are designed to address the needs of all lawyers by trusting each lawyer to decide within a broad framework what he or she most needs to remain competent and fit to practice law.

4. The Future. The rule is intentionally drafted for the future. For administrative reasons, the proponents are requesting adoption of the suggested amendments with an implementation (effective) date of January 1, 2016. It is important to look ahead and plan for the changes in the legal landscape that will occur both before and after the implementation date. This rule does that by taking into account the needs of the whole membership, not just litigators or general practitioners, but all lawyers. By taking action now to address the educational and training needs of a changing profession, the lawyers of Washington will be better equipped to maintain their competence and professionalism into the future, which in turn serves to better protect the public in the long run.

Key Recommendations

The most significant ways in which the suggested APR 11 varies from the current rules and regulations are described below.

Purpose (Proposed APR 11(a)).

As proposed, new APR 11 expands and clearly defines the purpose of MCLE to include competence, character, and fitness based on the three fundamental requirements for admission to the practice of law. In addition, the purpose statement explicitly states the need for public protection.

Education Requirements (Proposed APR 11(c) and (f)(1) & (2).

Under the new structure in proposed APR 11, lawyers will continue to be required to earn a minimum of 45 credits every three years. However, in the new structure, a minimum of 15 credits must be earned in “law and legal procedure” courses. The "law and legal procedure" subject area continues the recognition of the importance of keeping current on the law. This subject area represents the traditional, substantive, black letter law courses, including updates and developments in all areas of law and legal procedure and traditional skills building seminars such as trial advocacy. Nearly all lawyers already earn most of this type of credit. Theoretically, as the rules exist now, any one lawyer could obtain all credits through other approved activities without attending or completing a single traditional CLE course.

In addition, lawyers will continue to be required to earn a minimum of six credits in “ethics and professional responsibility.” The MCLE task force considered raising the requirement to seven credits, however, the overwhelming response from the membership against that proposal convinced the task force to keep it at six credits.

The remaining 24 credits may be earned in any of the approved subject areas or approved activities permitted by the proposed rule. This is a simplified structure from current rules and regulations. There are no individual subject or activity credit caps and very few conditions placed on how to earn credits through activities other than courses. Again, the reason for this structure goes to striking a balance between protecting the public and meeting the needs of lawyers who are engaged in all sorts of different professions. All task force members agreed on this structure. Where there was a difference of opinion was in how many credits should be in “law and legal procedure” – there were some who advocated for more and some less. In the end, 15 was the compromise agreed upon.

Approved Course Subjects (Proposed APR 11(f)).

As discussed above, after a lawyer meets the minimum 15 “law and legal procedure” course credits and the six “ethics” credits, the remaining credits may be earned in a number of other approved subject areas. All of the proposed course subjects relate directly to the practice of law and the legal profession. In fact, most of them are already approved for CLE credit under the existing rules or were included in the suggested amendments previously submitted to this Court in 2013. These subject areas incorporate the needs of all lawyers as identified by the expert reports to the task force. In addition, it provides avenues for lawyers who are in law or legal profession related fields, such as law school education, regulation of the profession and access to justice, to earn MCLE credit when learning about improving the profession as a whole.

This structure allows lawyers who are engaged in the practice of law to choose to continue to supplement their knowledge of the law by attending additional “law” courses. On the other hand, lawyers may choose courses or activities that enhance their knowledge and skills relevant to their situation or the legal profession while at the same time maintaining minimum competence to practice law.

No “Live” Credit Requirement.

Under new APR 11, Washington would join several other states that do not have a “live” requirement.² Suggested APR 11 eliminates the requirement to attend “live” courses or seminars. Currently, the rules require lawyers to earn at least half of their credits by attending courses that occur in real time, including live webcasts.

There are several factors that support the elimination of the “live” credit requirement. Members often express concern about the cost of CLE courses—and not only the course tuition or registration fees. For many members, the cost of attending CLE courses in person includes travel expenses and time away from the home and office. A majority of newer lawyers, post-recession, may not be able to quickly find employment. In addition, those new lawyers finding employment now typically start out in small law firms (two-to-ten lawyer size firms) rather than joining large law firms as has been the case historically. These lawyers do not have the same resources and ability to take time away from the office as lawyers in larger law firms. In addition, the Bar Association now has over 30,000 active lawyers living and working around the world, so access and expense is a real issue.

Among other factors are the rapid advances in technology that now bring pedagogically sophisticated CLE courses into lawyers’ offices and homes, and, the reality that most live seminars are simply lectures with a brief question and answer period at the end. Research shows that these lecture programs are a less effective learning method compared to actual “doing” (trial advocacy programs, handling a pro bono case, for example). There are very few courses that provide significant time for participation or application of the new knowledge or skills. Given this reality, the task force sees little benefit in travelling to or viewing a live lecture when the same experience can be replicated at the home or office at a time that is convenient for the lawyer.

The WSBA understands that in a proper learning environment the best learning can happen when people are able to participate and interact with the educators and other attendees. Likewise, the WSBA understands the need for some lawyers to use CLE courses and seminars as a way to network and connect with other lawyers in their areas of practice. These are all good reasons for sponsors to continue to offer these live courses. Lawyers who need or want a “live” or participatory experience will continue to seek out such courses. It may even turn out that CLE providers will improve their “live” offerings to capture lawyers who are looking for courses that are more than a lecture. However, “live” should not be a requirement especially when such a requirement does not necessarily provide a better learning experience and can also be a barrier for those with limited means or limited geographic opportunities to attend “live” courses.

Approved Activities (Proposed APR 11(e)). In addition to courses and seminars, there are several other activities for which lawyers may earn MCLE credit. All but one of these activities exist in some form in the current rules and regulations. The primary recommendations for approved activities involve removing credit caps and many of the requirements for earning credits through these activities. Again, this simplifies and works with the new recommended structure for earning credits after the minimum requirements are met. One significant change is the recommendation that CLE speakers or presenters earn a maximum of five credits of preparation time per hour of presentation time. This is a change from the current ten credits per course.

Mentoring is a new activity in suggested APR 11. Mentoring is important for the profession as a way for experienced lawyers to pass on their knowledge and practical experience to new lawyers. Mentoring is one of the best educational methods. Under this proposed rule, MCLE credit could be earned by both the mentor and the mentee when the mentoring is provided at no cost and is performed through a structured mentoring program approved by the MCLE Board. The MCLE Board would be tasked with establishing standards for approving mentoring programs.

Sponsor Deadline for Application for Approval of Courses (Proposed APR 11(g)). Finally, suggested APR will require sponsors to apply for credit at least 15 days prior to the date of the course. This is likely the most significant recommendation affecting sponsors of CLE courses. Currently, only private law firms, corporate legal departments and government sponsors need to apply in advance of the first presentation of the course. The purpose is to encourage sponsors to apply for credit in advance so that lawyers know in advance what courses are available and how much MCLE credit they are going to earn from attending a course. Sponsors who fail to meet the deadline may still submit an application for approval subject to a late fee.

Conclusion

These recommendations arise out of the context of today’s 21st century Washington state lawyer who is now practicing in a global economy with rapidly changing technologies, which are in turn radically changing the practice of law and methods available for educating lawyers. The recommendations also address specific current and future needs of WSBA members who want healthier practices while recognizing that the practice of law – and use of a lawyer’s skills – is much wider than in the past. Finally, the recommendations are based on solid pedagogical grounding – that mandatory legal education is only effective if it addresses a lawyer’s true needs and is relevant to the lawyer. In this way, the public is best protected and served when members take courses that address true need.

¹ The Report and Recommendations of the MCLE Task Force is available on the WSBA website.

² States without a live credit requirement include two of our comity states, Oregon and Idaho. Other states include Arizona, Colorado, Florida, Illinois, Indiana, Nevada, Ohio, Oklahoma and Texas.