Buck Files 2016-04-25 04:01:12
My changing thoughts on the minimum CLE requirements for all Texas lawyers. It was 30 years ago, but I remember my reaction to learning that all Texas lawyers—or so we thought—were going to have a minimum continuing legal education requirement. I was so angry. I had already become a CLE junkie, attending or teaching at our Advanced Criminal Law Courses and at seminars of the Texas Criminal Defense Lawyers Association and the Criminal Defense Lawyers Project. I had also traveled to seminars in New York City, Atlanta, and Washington, D.C., and believed that a lawyer who was willing to spend the time and money to attend such CLE events was entitled to an advantage over those lawyers who chose not to do so. In retrospect, this was such a selfish response. I was not the only Texas lawyer who was less than pleased. Those of us who were serving on the planning committees for the State Bar of Texas’s Advanced Courses noticed a significant change in the critiques filled out by some of the attendees. They weren’t happy to be there, and they blasted the speakers and everything about the courses. This continued for about four years. It was not long before my position on MCLE began to change. Perhaps it was my memories of Waldo that caused me to rethink this. When I left the Marine Corps and returned to Tyler in 1967, the Smith County Bar Association was small, and the older lawyers reached out to newcomers to make them feel welcome. Waldo was one of these lawyers. He was a perfect gentleman and had served in the Navy during World War II. We bonded. Then, I saw a different side of Waldo. Each time he came to the district attorney’s office to represent a client, he would begin the conversation with, “I don’t know what the law is now, but I know what it used to be.” The Code of Criminal Procedure had become effective January 1, 1966, but Waldo had no concept of the procedural changes that our Legislature had enacted in that code. It took only a few conversations for me to realize that Waldo was equally unaware of what our Court of Criminal Appeals had been writing. Waldo was more of a danger to his clients than the prosecutors were. Over the years, as I became even more involved in TexasBarCLE, I realized the importance of putting on the best courses that we could in order to help lawyers be better prepared to serve their clients. In 2008, I received some surprising correspondence from the State Bar’s Membership and MCLE departments. I was advised that I would no longer be required to pay bar dues or to comply with the MCLE requirements because I was turning 70 years of age that year. At the time, I was serving as chair of the State Bar’s CLE Committee and brought this to the attention of the other members. Since I was the only person who was 70, no one else had received such letters or was aware of these “benefits.” No one on the committee believed that the “70-year lawyer exemption” for MCLE made any sense. Thoughts of Waldo returned. Why should lawyers who were continuing to practice after their 70th birthday have a lesser duty to their clients than those who were under the age of 70? And then there was section 81.012 of our Government Code which reads, in part, “... the state bar has the following purposes: ... (2) to advance the quality of legal services to the public. ...” Four years later, I was sworn in as president of the State Bar of Texas and began to visit with Executive Director Michelle Hunter about my MCLE concerns. For those of you who do not know Michelle, she is the giver of wisdom. She suggested that it would be appropriate for me to create a Task Force on Aging Lawyer Issues. From having attended meetings of the Southern Conference of Bar Presidents and the Western States Bar Conference, I knew that other bar associations were concerned about this same topic. In 2013, I asked State Bar Past President Terry Tottenham to chair such a task force and named 11 other lawyers from around the state who were gloriously diverse in their ages, areas of practice, and prior service, if any, with the State Bar to serve with Terry. On March 18, 2014, the task force presented its report that contained this language about MCLE for all Texas lawyers. The number of attorneys approaching 70 years of age has increased significantly in the last 15 years and will continue to increase over time. With more attorneys practicing past 70 years of age, and with no requirement to take CLE courses, there is a concern that many are not staying current on the law because they are not required to do so. The Texas Board of Legal Specialization has no MCLE exemptions for attorneys age 70 years or older. Board certified attorneys in this age group are still required to take a specified number of CLE hours every year in their specialization in order to keep their board certification. Similarly, Doctors, Nurses, and CPA’s in Texas have no age exemptions when it comes to mandatory education courses. The Task Force believes that it is important for all practicing attorneys to remain current on the law and legal practices/procedures. Ultimately, there is greater public protection if attorneys are better educated in their respective practice areas. Emeritus attorneys who want to continue practicing will benefit from staying current on the law and will provide better legal representation to their clients. The best way to accomplish this is to take legal education courses in their respective practice areas. However, absent a requirement to take CLE courses, there is a lesser likelihood that Emeritus attorneys will continue to take classes to stay current with the law. Therefore, the Task Force recommends that the State Bar of Texas eliminate the MCLE exemption for Emeritus attorneys who wish to continue to practice law. This means that they would be required to comply with the MCLE Rules and Regulations and be required to take 15 hours of CLE every year. Emeritus attorneys that practice law and do not meet the MCLE requirements should be suspended from practicing law as part of the State Bar’s normal administrative suspension process for non-compliance. But what about our more than 7,000 older lawyers? I had been concerned about them in 2013 and knew that some might have difficulty paying for the cost of these newly required CLE courses. I talked to Pat Nester, the director of TexasBarCLE. We had allocated $50,000 in the 2012-2013 budget for scholarships for State Bar CLE courses. Even more is available now. Pat recently explained to me how a Texas lawyer—who plans ahead—can satisfy his or her MCLE requirements for a significantly reduced fee or for free. Fifteen hours of accredited CLE are required for each reporting year. Three of these hours can be done at no charge through self-study, e.g., simply by reading. TexasBarCLE, through its website at texasbarcle.com, provides an additional three free CLE hours over the course of the year. A half-hour of free CLE is rotated in every other month. That leaves nine hours that might have to be paid for. Most local bar associations now provide some free CLE for their members. The cost of getting nine hours of CLE solely from TexasBarCLE ranges from about $180 to about $450, depending on the type of course and whether it is live or online. Many lawyers are buying “CLE Fifteen” online packages—15 hours for $445—which bring together the best speakers and topics in a practice area from the previous year. But here is the good news: Anyone needing a scholarship for part or all of the registration fee for TexasBarCLE programs—live or online—can instantly sign up for one by clicking the “Scholarship Info” link at texasbarcle.com in the lower left of the page and filling out the short form. (Note: This is for lawyers who need this financial assistance.) Hundreds of our lawyers are already receiving these scholarships that give this level of help, and our older lawyers should explore this option. Therefore, the answer to how much the CLE costs will be for senior lawyers can be zero—if they plan ahead. I am pleased with where we are now as a bar association. We require all of our lawyers to satisfy an MCLE requirement and we provide a path for those lawyers who need financial assistance to be able to do so. Once again, the State Bar of Texas has chosen to address the needs of both the people of Texas and the lawyers of Texas. BUCK FILES is a past president of the State Bar of Texas and a founding member of Bain, Files, Jarrett, Bain and Harrison in Tyler. In his 53rd year as a lawyer, Files has written 200 columns (“The Federal Corner”) for The Voice for the Defense and is a member of the Texas Criminal Defense Lawyers Hall of Fame. He has chaired the State Bar’s CLE Committee and served on the Texas Board of Legal Specialization. EMERITUS MCLE EXEMPTION STATUS REMOVED The Supreme Court issued an order dated August 28, 2015, that amends Article XII of the State Bar Rules to remove the MCLE exemption for emeritus attorneys. Beginning June 1, 2016, emeritus members (members who are 70 years of age or older) must comply with MCLE requirements. How will you be affected? Continue reading to find out about compliance years, why the rule changed, and what to do if you are retired. For more information regarding emeritus exemption status, go to texasbar.com/mcle/emeritus. Why was the MCLE exemption for emeritus attorneys removed? The recommendation to remove the MCLE emeritus exemption came from the State Bar Task Force on Aging Lawyer Issues. The MCLE emeritus exemption was removed to ensure that all active practicing attorneys remain current in the law. The recommendation was approved by the State Bar MCLE Committee and then by the State Bar Board of Directors and the Supreme Court of Texas. When does the MCLE requirement for emeritus attorneys become effective? The MCLE requirement applies to compliance years starting on or after June 1, 2016. Previously exempt attorneys may claim credit for CLE completed within 12 months immediately preceding the first compliance year beginning on or after June 1, 2016, provided that these CLE hours have not been used for compliance in a prior year (see chart below). What if I am retired or no longer practice law? Attorneys who no longer practice law may claim MCLE Non-Practicing Status or Inactive Membership Status. To be eligible for either status as an option for MCLE compliance, an attorney must be non-practicing or inactive during the entire MCLE compliance year. Members who practice law at the beginning of a compliance year and later change to inactivate status are not eligible for an exemption but may defer their MCLE requirements. To request Inactive Membership Status, contact the Membership Department at email@example.com or (800) 204-2222, ext. 1383. To request MCLE Non-Practicing Status, contact the MCLE Department at firstname.lastname@example.org or (800) 204-2222, ext. 1806. Please refer to the chart below to determine your first MCLE compliance year. CLE credit hours completed between these dates may be used toward your first MCLE requirement of 15 hours, including 3 hours of ethics/professional responsibility.
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