IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO REGULATIONS 104 AND 106 TO APR 11

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ORDER NO. 25700-A-811

     The Washington State Bar Association having recommended the adoption of the proposed amendments to Regulations 104 and 106 to APR 11, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites expeditiously.

     (b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date in the Washington Reports. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 3rd day of March 2005.

	For the Court
	Gerry L. Alexander
	CHIEF JUSTICE

Purpose: The WSBA MCLE Board revised three regulations of APR 11 to improve the quality of the MCLE program requirements and to increase the efficiency of administration.

&sqbul;	The revision to APR 11 Regulation 104 (c)(4) is to correct a typographical error.
&sqbul;	The revision to APR 11 Regulation 104(e) is to address concerns about this regulation raised by the major law firms of the greater Seattle area.
&sqbul;	The revision to APR 11 Regulation 106 is to require accredited sponsors to post course offerings on the WSBA MCLE web site prior to the start of the course.
&sqbul;	APR 11 Regulation 104 (c)(4)
	This regulation addresses the number of credits to be given to members who teach law school courses. As it is currently worded, it gives 10 hours of credit for each hour of preparation time. The intention was to give 10 hours of preparation credit for each hour of presentation time. The revision of the regulation reflects this intention.
&sqbul;	APR 11 Regulation 104(e)
	Law firm representatives had a particular concern with the current Regulation 104 (e)(4), which states: "Private law firm courses shall be open to non-members of the sponsoring firm provided that there is space available." Since the adoption of this regulation there has been ongoing confusion and frustration on the part of law firms about how to comply with this and on the part of the MCLE Board for enforcing the intent of the regulation. The revisions to the regulation bring clarity to this and related private law firm MCLE issues. The revisions also explicitly include corporate in-house law offices (which were only implicitly included in the original regulations). In addition, Regulation 104(f) was deleted and the regulations pertaining to private CLEs offered by government law offices was incorporated into the revised Regulation 104(e).
&sqbul;	APR 11 Regulation 106
	Accredited sponsors pay an annual $150 fee to the WSBA for the privilege of submitting as many pre-approved Form 1s (course accreditation application forms) to the WSBA MCLE web site as they want to. (There are currently 15 accredited sponsors.) Because the Form 1s are pre-approved, no WSBA staff time is required for processing. Currently there is nothing in APR 11 that can be used to hold accredited sponsors accountable for submitting Form 1s prior to a course, though that is the WSBA expectation of an accredited sponsor. From 1/1/04 to 9/1/04, 186 Form 1s from accredited sponsors were submitted late, some as much as 6-9 months late. The result was that members, not finding a taken course from an accredited sponsor listed, sent in their own Form 1s. The MCLE staff thus had to process many Form 1s for each of these 186 courses (with no remuneration from sponsor Form 1 fees) because the accredited sponsor failed to submit the Form 1 prior to the course. The amendment to Regulation 106 gives the Board the power to hold accredited sponsors accountable for submitting Form 1s prior to each course given.

     (a) Basis for Approval of Courses. [No change]

     (b) Basis for Approval of Activities. [No change]

     (c) Examples of Courses or Activities that May Qualify for Credit.

     (1) [No change]

     (2) [No change]

     (3) [No change]

     (4) CLE credit will be given for attending law school courses, including courses offered at the J.D. or advanced education levels based upon the actual hours of attendance. Applicants need not take exams to qualify for credit, but must otherwise comply with the applicable regulations of the law school or university involved. Credit for teaching law school courses by full-time teachers will not qualify for credit. However, for the first preparation leading to the teaching of a specific law school course by an adjunct (not a full-time) professor, credit will be given on the basis of ten hours of preparation credit for each hour of preparation presentation time, and one credit will be given for each hour of class presentation time to a maximum of 15 credit hours of presentation time each year.

     (5) [No change]

     (6) [No change]

     (d) The Following Activities will not Qualify for Credit. [No change]

     (e) Private Law Firm, Legal Department, and Government Agency Education. In addition to compliance with the requirements of Regulation 104(a) and the limitations described below, courses presented by Private Law Firms ("Law Firms"), in-house Legal Departments ("Legal Departments"), and federal, state, local, and military agencies and organizations ("Government Agencies") courses may be approved for credit under the provisions of APR 11 on the following bases:

     (1) Approval of such courses may be granted only on a case by case basis. Accredited Sponsor status (as set forth in Regulation 106) will not be available for private Law Firm, Legal Department, or Government Agency sponsors (herein collectively "Private Legal Sponsors"). The CLE Board may, however, consider the sponsoring organization's experience in presenting similar programs.

     (i) If a Private Legal Sponsor contracts with an outside CLE provider to present a CLE, then the Private Legal Sponsor must register as the sponsor of the CLE program. The outside CLE provider is not the sponsor in this situation.

     (ii) Nothing herein, however, shall be construed to prohibit or discourage Private Legal Sponsors from contracting with CLE providers to provide training, nor shall a CLE sponsor lose its accredited status because it provides courses or training to Private Legal Sponsors.

     (2) All information called for by Form 1, including a A complete course schedule with time allocations, must be submitted at least thirty (30) days prior to the date scheduled for the class in advance. High quality written materials are required and should be distributed to all attendees at or before the time the course is presented. A critique form or evaluation sheet and an attendance sheet, which attendees will complete, must be submitted to the CLE Board within 30 days after the program.

     (3) The course must be attended by five (5) or more lawyers admitted to any Bar Association, excluding the instructors.

     (4) Private law firm c Courses sponsored by Private Legal Sponsors may shall be open or closed to non-members of the Private Legal Sponsor law firm provided that notice of such courses shall be published on the WSBA's MCLE web page there is space available.

     (5) Marketing of the Private Legal Sponsor law firm in any manner is not permitted including but not limited to the display of brochures, pamphlets, or other Private Legal Sponsor firm advertising. Approval for credit may be denied or withdrawn if the program material is presented in such a way that it is necessary for a particular firm to be retained or associated in order to adequately handle the type of matter being discussed. Persons or organizations may not state or imply that the WSBA or the CLE Board approves or endorses any person or organization.

     (6) No course provided by a Private Legal Sponsor shall focus directly or indirectly to a pending case, action or matter being handled by the Private Legal Sponsor.

     (7) Additional regulations pertaining to Law Firms:

     (i) No course provided by a Law Firm shall be paid for or in any way underwritten in whole or part, directly or indirectly by a client or prospective or former client of the Law Firm.

     (ii) Members shall be entitled to a maximum of fifteen (15) credit hours in any reporting period for courses provided by a Law Firm.

     (8) Additional regulation pertaining to Legal Departments -- Members shall be entitled to a maximum of fifteen (15) credit hours in any reporting period for courses provided by a Legal Department.

     (9) Additional regulation pertaining to Government Agencies -- If a course is closed, any written materials need to be made available to any inquirer.

     (f) Governmental Agencies. In addition to compliance with the requirements of Regulation 104(a) and the limitations described below, the courses of federal, state, local, and military agencies or organizations may be approved for credit under the provisions of APR 11 on the following bases:

     (1) Approval of such courses may be granted only on a case by case basis. Accredited sponsor status (as set forth in Regulation 106) will not be available for governmental agencies. The Board may, however, consider the sponsoring organization's experience in presenting similar programs.

     (2) A complete course schedule with time allocations must be submitted in advance. High quality written materials are required and should be distributed to all attendees at or before the time the course is presented. A critique form or evaluation sheet and an attendance sheet which attendees will complete must be submitted to the CLE Board within 30 days after the program.

     (3) The course must be attended by five (5) or more lawyers admitted to any Bar Association, excluding the instructors.

     (4) Governmental agency courses may be open or closed to nonmembers of the governmental agency or organization, provided that notice of them will be published on the WSBA web page, and that any written materials are available to any inquirer.

     (a) The CLE Board may extend approval to a sponsoring organization for all of the continuing legal education activities sponsored by such organization which conform to Regulation 104. A sponsoring agency to which such general approval has been extended shall be known as an "accredited sponsor".

     (b) A sponsoring organization desiring to apply for status as an accredited sponsor shall submit to the CLE Board all information called for in the form required by the Board. Accreditation shall be granted or denied in accordance with the provisions of Regulation 108. A primary consideration in the evaluation of such a request for status as an accredited sponsor shall be the previous experience of the organization in sponsoring and presenting continuing legal education activities. A reasonable fee may be assessed by the CLE Board, with approval of the Board of Governors, with regard to the application. A private law firm shall not qualify for accredited sponsor status.

     (c) Once a sponsoring organization has been granted the status of an accredited sponsor, it is not required to seek approval for individual educational activities sponsored while an accredited sponsor. Accredited sponsors It

     (i) sShall be responsible for calculating the number of credit hours to be awarded.

     (i) and Shall be responsible for reporting those determinations to the CLE Board prior to the event in such manner as the CLE Board determines.

     (iii) Accredited sponsors a Are entitled to include in any materials which promote such activity, language that indicates the activity has been approved for Washington State MCLE credit in the amount of ____ hours (of which ____ hours will apply to ethics credit requirements).

     (d) The CLE Board may set fines and penalties for failure to comply with accredited sponsor reporting requirements, including revocation of the accredited sponsor status.

     (e d) A sponsoring organization which has been granted the status of an accredited sponsor shall, except as otherwise provided in this Regulation 106, continue to be subject to and governed by all provisions of APR 11 and these Regulations.

     (f e) A sponsoring organization which has been granted the status of accredited sponsor shall provide the CLE Board at least yearly with a list of all its course offerings, identifying the number attorneys and non-attorneys attending each program, and such additional information as the CLE Board may require. The sponsoring organization shall also solicit critiques or evaluations from participants at each program, retain copies, and provide them to the CLE Board upon request. The CLE Board may, upon review of such information, advise the organization that its manner of compliance is improper, and may terminate the organization's status as an accredited sponsor for future offerings.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

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