Posted By Gina Roers-Liemandt,
Wednesday, June 28, 2017
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This past February, the ABA House of Delegates adopted the new ABA Model Rule for Minimum Continuing Legal Education, which replaces the 1988 version of the rule. This new MCLE Model Rule represents the culmination of more than two years of work by the ABA’s Standing Committee on Continuing Legal Education (SCOCLE) in conjunction with more than 50 volunteers, including individual lawyers, ABA leaders, CLE regulators, CLE providers, judges, academics, law firm professional development coordinators, and state/local/specialty bar association leaders. Many ACLEA leaders and members were involved in each step of the process.
Like its predecessor, the new MCLE Model Rule recognizes the vital role MCLE plays in the legal profession. The Model Rule emphasizes several key goals in its Purpose statement, which provides: “To maintain public confidence in the legal profession and the rule of law, and to promote the fair administration of justice, it is essential that lawyers be competent regarding the law, legal and practice-oriented skills, the standards and ethical obligations of the legal profession, and the management of their practices.”
The Rule looks significantly different than its predecessor, employing a new structure and eliminating many specific provisions related to the administration of MCLE programs, such as the size and composition of a jurisdiction’s MCLE governing entity, methods of reporting MCLE credits, deadlines, fees, sanctions, appeals, and methods of financing MCLE administration. However, some key provisions have remained the same.
Both the new MCLE Model Rule and its predecessor:
- Recommend 15 hours per year of MCLE (while recognizing that some jurisdictions prefer 12 hours).
- Take no position on whether lawyers should report MCLE credits every 1, 2, or 3 years.
- Recommend that jurisdictions have a system by which frequent MCLE sponsors can be designated “approved providers.”
- Recommend that all lawyers be required to take diversity and inclusion programming (although, as noted below, the new MCLE Model Rule has a more specific requirement than its predecessor).
- Recommend that speakers at MCLE programs have the necessary skills to teach the course, but do not require speakers to be lawyers.
Summary of some key components of the new MCLE Model Rule:
- Requires lawyers to take the following specialty credits, which also count towards the general MCLE requirement: (1) Ethics and Professionalism (average one credit per year); (2) Diversity and Inclusion (one credit every three years); and (3) Mental Health and Substance Use Disorders (one credit every three years).
- The Diversty and Inclusion credit requirement builds on existing ABA policy that encourages jurisdictions with MCLE to “include as a separate credit programs regarding diversity and inclusion in the legal profession of all persons regardless of race, ethnicity, gender, sexual orientation, gender identity, or disabilities, and programs regarding elimination of bias.”
- The Mental Health and Substance Use Disorder Credit recognizes that requiring all lawyers to receive education about these disorders can benefit both individual lawyers and the profession. This requirement is, in part, a response to the 2016 landmark study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, entitled, “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys.”
- Accredits CLE program formats that include the use of distance learning, and does not limit the number of credits that can be earned using a particular delivery format.
- Accredits CLE programs that address law practice and technology.
- Allows lawyers to choose the MCLE programs that best meet their educational needs by not limiting the number of credits that can be earned in any subject area (e.g., substantive law, law practice, technology, ethics and professionalism, diversity and inclusion, and mental health and substance use disorders).
Treats in-house sponsors of CLE programs the same as other sponsors and allows for full accreditation of programs when all other accreditation standards have been met. Also, the new MCLE Model Rule no longer places limits on the number of credits a lawyer can earn through in-house programming.
- Encourages jurisdictions to adopt a special exemption for lawyers licensed in multiple jurisdictions, pursuant to which a lawyer is exempt from satisfying MCLE requirements if he or she satisfies the MCLE requirements of the jurisdiction where the lawyer’s principal office is located.
- Recognizes that jurisdictions may choose to authorize additional exemptions from MCLE requirements for certain groups, such as retired lawyers. The new MCLE Model Rule does not contain the Comment from its predecessor that stated: “Exemptions are inconsistent with the purpose of MCLE and are not recommended.”
- Creates a more narrow definition for “self-study” activities that are not approved for MCLE credit, including programming without interactivity, informal learning, and reading. Activities such as viewing programs online or on video are now defined elsewhere in the new MCLE Model Rule and are approved for MCLE credit.
A discussion of each of these provisions can be found in the Report that was submitted to the ABA House of Delegates with the new MCLE Model Rule.
SCOCLE has created an MCLE Model Rule Implementation Committee that will gather information on the Rule’s implementation and serve as a resource for jurisdictions. SCOCLE maintains a website, located at http://ambar.org/mclemodelrule, which contains links to the new MCLE Model Rule, its accompanying Report, and other materials. It is the ABA’s hope that jurisdictions will undertake a review of the MCLE Model Rule and consider integrating some or all of its provisions into their MCLE rules.
MCLE model rule
Minimum Continuing Legal Education