WSR 14-23-032 RULES OF COURT STATE SUPREME COURT
[November 6, 2014]
The Washington State Bar Association, having recommended the Proposed Amendments to APR 11—Continuing Legal Education and Appendix APR 11—Regulations of the Washington State Board of Continuing Legal Education, and the Court having considered the amendments and comments submitted thereto; Now, therefore, it is hereby ORDERED: (a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of 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. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words. DATED at Olympia, Washington this 6th day of November, 2014.
GR 9 COVER SHEET
Suggested Amendments
RULE 11 OF THE ADMISSION AND PRACTICE RULES (APR) AND
APPENDIX APR 11. REGULATIONS OF THE WASHINGTON STATE BOARD OF CONTINUING LEGAL EDUCATION
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
1 The Report and Recommendations of the MCLE Task Force is available on the WSBA website.
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.
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.
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.
SUGGESTED AMENDMENTS
ADMISSION AND PRACTICE RULES (APR)
RULE 11 & APPENDIX APR 11. REGULATIONS OF THE WASHINGTON STATE BOARD OF CONTINUING LEGAL EDUCATION
RULE 11. MANDATORY CONTINUING LEGAL EDUCATION (MCLE)
(a) Purpose. Mandatory continuing legal education ("MCLE") is intended to enhance lawyers' legal services to their clients and protect the public by assisting lawyers in maintaining and developing their competence as defined in RPC 1.1, fitness to practice as defined in APR 22, and character as defined in APR 21. These rules set forth the minimum continuing legal education requirements for lawyers to accomplish this purpose.
(b) Definitions.
(1) "Activity" means any method by which a lawyer may earn MCLE credits.
(2) "Association" means the Washington State Bar Association.
(3) "Attending" means participating in an approved activity or course.
(4) "Calendar year" means a time period beginning January 1 and ending December 31.
(5) "Identical activity" means any prior course or other activity that has not undergone any substantial or substantive changes since last offered, provided or undertaken.
(6) "Lawyer" means an active member of the Association, a judicial member of the Association classified as an administrative law judge, and any other lawyer admitted to the limited practice of law in Washington who is required by the Admission and Practice Rules (APR) to comply with this rule.
(7) "Reporting period" means a three-year time period as assigned by the Association in which a lawyer must meet the education requirements of this rule.
(8) "Sponsor" means a provider of continuing legal education activities.
(c) Education Requirements.
(1) Minimum Requirement. Each lawyer must complete 45 credits of approved continuing legal education by December 31 of the last year of the reporting period with the following requirements:
(i) at least 15 credits must be from attending approved courses in the subject of law and legal procedure, as defined in section (f)(1); and
(ii) at least six credits must be in ethics and professional responsibility, as defined in section (f)(2).
(2) Earning Credits. A lawyer earns one credit for each 60 minutes of attending an approved activity. Credits are rounded to the nearest quarter hour. A lawyer may earn no more than eight credits per calendar day. A lawyer cannot receive credit more than once for an identical activity within the same reporting period.
(3) New Lawyers. Newly admitted lawyers are exempt for the calendar year of admission.
(4) Military Personnel. Military personnel in the United States Armed Forces may be granted an exemption, waiver or modification upon proof of undue hardship, which includes deployment outside the United States. A petition shall be filed in accordance with subsection (i)(5) of these rules.
(5) Exemptions. The following are exempt from the requirements of this rule for the reporting period(s) during which the exemption applies:
(i) Judicial Exemption. Judicial members of the Association, except for administrative law judges;
(ii) Supreme Court Clerks. The Washington State Supreme Court clerk and assistant clerk(s) who are prohibited by court rule from practicing law;
(iii) Legislative Exemption. Members of the Washington State Congressional Delegation or the Washington State Legislature; and
(iv) Gubernatorial Exemption. The Governor of Washington state.
(6) Comity. The education requirements in Oregon, Idaho and Utah substantially meet Washington's education requirements. These states are designated as comity states. A lawyer may certify compliance with these rules in lieu of meeting the education requirement by paying a comity fee and filing a Comity Certificate of MCLE Compliance from a comity state certifying to the lawyer's subjection to and compliance with that state's MCLE requirements during the lawyer's most recent reporting period.
(7) Carryover Credits. If a member completes more than the required number of credits for any one reporting period, up to 15 of the excess credits, two of which may be ethics and professional responsibility credits, may be carried forward to the next reporting period.
(d) MCLE Board
(1) Establishment. There is hereby established an MCLE Board consisting of seven members, six of whom must be active members of the Bar Association and one who is not a member of the Association. The Supreme Court shall designate one board member to serve as chair of the MCLE Board. The members of the MCLE Board shall be appointed by the Supreme Court. Appointments shall be staggered for a 3-year term. No member may serve more than two consecutive terms. Terms shall end on September 30 of the applicable year.
(2) Powers and Duties.
(i) Rules and Regulations. The MCLE Board shall review and suggest amendments or make regulations to APR 11 as necessary to fulfill the purpose of MCLE and for the timely and efficient administration of these rules, and clarification of education requirements, approved activities and approved course subjects. Suggested amendments are subject to review by the Association's Board of Governors and approval by the Supreme Court.
(ii) Policies. The MCLE Board may adopt policies to provide guidance in the administration of APR 11 and the associated regulations. The MCLE Board will notify the Board of Governors and the Supreme Court of any policies that it adopts. Such policies will become effective 60 days after promulgation by the MCLE Board.
(iii) Approve Activities. The MCLE Board shall approve and determine the number of credits earned for all courses and activities satisfying the requirements of these rules. The MCLE Board shall delegate this power to the Association subject to MCLE Board review and approval.
(iv) Review. The MCLE Board shall review any determinations or decisions regarding approval of activities made by the Association under these rules that adversely affect any lawyer or sponsor upon request of the lawyer, sponsor or Association. The MCLE Board may take appropriate action consistent with these rules after any such review and shall notify the lawyer or sponsor in writing of the action taken. The MCLE Board's decision shall be final.
(v) Fees. The MCLE Board shall determine and adjust fees for the failure to comply with these rules and to defray the reasonably necessary costs of administering these rules. Fees shall be approved by the Association's Board of Governors.
(vi) Waive and Modify Compliance. The MCLE Board shall waive or modify a lawyer's compliance with the education or reporting requirements of these rules upon a showing of undue hardship filed in accordance with these rules. The MCLE Board may delegate this power to the Association subject to (1) parameters and standards established by the MCLE Board, and, (2) review by the MCLE Board.
(vii) Approve Mentoring Programs. The MCLE Board shall approve mentoring programs that meet requirements and standards established by the MCLE Board for the purposes of awarding MCLE credit under these rules.
(viii) Audits for Standards Verification. The MCLE Board may audit approved courses to ensure compliance with the standards set forth in these rules.
(3) Expenses and Administration. Members of the MCLE Board shall not be compensated for their services but shall be reimbursed for actual and necessary expenses incurred in the performance of their duties according to the Association's expense policies. All expenses incurred and fees collected shall be submitted on a budget approved by the Association's Board of Governors. The Association shall provide administrative support to the MCLE Board.
(e) Approved Activities. A lawyer may earn MCLE credit by attending, teaching, presenting or participating in activities approved by the Association. Only the following types of activities may be approved:
(1) Attending, teaching, presenting or participating in or at a course, provided that any pre-recorded audio/visual course is less than five years old;
(2) Preparation time for a teacher, presenter or panelist of an approved activity at the rate of up to five credits per hour of presentation time, provided that the presentation time is at least 30 minutes in duration;
(3) Attending law school courses with proof of registration or attendance;
(4) Attending bar review courses for jurisdictions other than Washington with proof of registration or attendance;
(5) Writing for the purpose of lawyer education, when the writing has been published by a recognized publisher of legal works as a book, law review or scholarly journal article of at least 10 pages, will earn one credit for every 60 minutes devoted to legal research and writing;
(6) Teaching law school courses, when the instructor is not a full-time law school professor;
(7) Providing pro bono legal services provided the legal services are rendered through a qualified legal services provider as defined in APR 8(e);
(8) Participating in a structured mentoring program approved by the MCLE Board provided the mentoring is free to the mentee and the mentor is an active member of the Association in good standing and has been admitted to the practice of law in Washington for at least five years. The MCLE Board shall develop standards for approving mentoring programs; and
(9) Judging or preparing law school students for law school recognized competitions, mock trials or moot court. The sponsoring law school must comply with all sponsor requirements under this rule.
(f) Approved Course Subjects. Only the following subjects for courses will be approved:
(1) Law and legal procedure, defined as legal education relating to substantive law, legal procedure, process, research, writing, analysis, or related skills and technology;
(2) Ethics and professional responsibility, defined as topics relating to the general subject of professional responsibility and conduct standards for lawyers and judges, including diversity and anti-bias with respect to the practice of law or the legal system, and the risks to ethical practice associated with diagnosable mental health conditions, addictive behavior, and stress;
(3) Professional development, defined as subjects that enhance or develop a lawyer's professional skills including effective lawyering, leadership, career development, communication, and presentation skills;
(4) Personal development and mental health, defined as subjects that enhance a lawyer's personal skills, well-being and awareness of mental health issues. This includes, stress management, and courses about, but not treatment for, anxiety, depression, substance abuse, suicide and addictive behaviors;
(5) Office management, defined as subjects that enhance the quality of service to clients and efficiency of operating an office, including case management, time management, business planning, financial management, office technology, practice development and marketing, client relations, employee relations, and responsibilities when opening or closing an office;
(6) Improving the legal system, defined as subjects that educate and inform lawyers about current developments and changes in the practice of law and legal profession in general, including legal education, global perspectives of the law, courts and other dispute resolution systems, regulation of the practice of law, access to justice, and pro bono and low cost service planning; and
(7) Nexus subject, defined as a subject matter that does not deal directly with the practice of law but that is demonstrated by the lawyer or sponsor to be related to a lawyer's professional role as a lawyer.
(g) Applying for Approval of an Activity. In order for an activity to be approved for MCLE credit, the sponsor or lawyer must apply for approval as follows.
(1) Sponsor. A sponsor must apply for approval of an activity by submitting to the Association an application fee and an application in a form and manner as prescribed by the Association by no later than 15 days prior to the start or availability of the activity.
(i) Late fee. A late fee will be assessed for failure to apply by the deadline. The Association may waive the late fee for good cause shown.
(ii) Repeating Identical Course. A sponsor is not required to pay an application fee for offering an identical course if the original course was approved and the identical course is offered less than 12 months after the original course.
(iii) Waiver of Application Fee. The Association shall waive the application fee for a course if the course is offered for free by a government agency or nonprofit organization. This provision does not waive any late fee.
(2) Lawyer. A lawyer may apply for approval of an activity not already approved or submitted for approval by a sponsor by submitting to the Association an application in a form and manner as prescribed by the Association. No application fee is required.
(h) Standards for Approval. Application of the standards for approval, including determination of approved subject areas and approved activities in subsections (e) and (f) of this rule, shall be liberally construed to serve the purpose of these rules. To be approved for MCLE credit, all courses, and other activities to the extent the criteria apply, must meet all of the following criteria unless waived by the Association for good cause shown:
(1) A course must have significant intellectual or practical content designed to maintain or improve a lawyer's professional knowledge or skills, competence, character, or fitness;
(2) Presenters must be qualified by practical or academic experience or expertise in the subjects presented and not disbarred from the practice of law in any jurisdiction;
(3) Written materials in either electronic or hardcopy format must be distributed to all lawyers before or at the time the course is presented. Written materials must be timely and must cover those matters that one would expect for a professional treatment of the subject. Any marketing materials must be separate from the written subject matter materials;
(4) The physical setting must be suitable to the course and free from unscheduled interruption;
(5) A course must be at least 30 minutes in duration;
(6) A course must be open to audit by the Association or the MCLE Board at no charge except in cases of government-sponsored closed seminars where the reason is approved by the Association;
(7) Presenters, teachers, panelists, etc. are prohibited from engaging in marketing during the presentation of the course;
(8) A course must not focus directly on a pending legal case, action or matter currently being handled by the sponsor if the sponsor is a lawyer, private law firm, corporate legal department, legal services provider or government agency; and
(9) A course cannot have attendance restrictions based on race, color, national origin, marital status, religion, creed, gender, age, disability or sexual orientation.
(i) Lawyer Reporting Requirements.
(1) Certify Compliance. By February 1 of the year following the end of a lawyer's reporting period, a lawyer must certify compliance, including compliance by comity certification, with the education requirements for that reporting period in a manner prescribed by the Association.
(2) Notice. Not later than July 1 every year, the Association shall notify all lawyers who are in the reporting period ending December 31 of that year, that they are due to certify compliance.
(3) Delinquency. A lawyer who does not certify compliance by the certification deadline or by the deadline set forth in any petition decision granting an extension may be ordered suspended from the practice of law as set forth in APR 17.
(4) Lawyer Late Fee. A lawyer will be assessed a late fee for either (i) or (ii) below but not both.
(i) Education Requirements Late Fee. A lawyer will be assessed a late fee for failure to meet the minimum education requirements of this rule by December 31. Payment of the late fee is due by February 1, or by the date set forth in any decision or order extending time for compliance, or by the deadline for compliance set forth in an APR 17 pre-suspension notice.
(ii) Certification and Comity Late Fee. A lawyer will be assessed a late fee for failure to meet the certification requirements or comity requirements by February 1. Payment of the late fee is due by the date set forth in any decision or order extending time for compliance or by the deadline for compliance set forth in an APR 17 pre-suspension notice.
(iii) Failure to Pay Late Fee. A lawyer who fails to pay the MCLE late fee by the deadline for compliance set forth in an APR 17 pre-suspension notice may be ordered suspended from the practice of law as set forth in APR 17.
(5) Petition for Extension, Modification or Waiver. A lawyer may file with the MCLE Board an undue hardship petition for an extension, waiver and/or modification of the MCLE requirements for that reporting period. In consideration of the petition, the MCLE Board shall consider factors of undue hardship, such as serious illness, extreme financial hardship, disability, or military service, that affect the lawyer's ability to meet the education or reporting requirements. The petition shall be filed at any time in a form and manner as prescribed by the Association but a petition filed later than 30 days after the date of the APR 17 pre-suspension notice will not stay suspension for the reasons in the APR 17 pre-suspension notice.
(6) Decision on Petition. The MCLE Board shall as soon as reasonably practical notify the lawyer of the decision on a petition. A lawyer may request review of the decision by filing, within 10 days of notice of the decision, a request for a hearing before the MCLE Board.
(7) Hearing on Petition. Upon the timely filing of a request for hearing, the MCLE Board shall hold a hearing upon the petition.
(i) The MCLE Board shall give the lawyer at least 10 days written notice of the time and place of the hearing.
(ii) Testimony taken at the hearing shall be under oath and recorded.
(iii) The MCLE Board shall issue written findings of fact and an order consistent with these rules as it deems appropriate. The MCLE Board shall provide the lawyer with a copy of the findings and order.
(iv) The MCLE Board's order is final unless within 10 days from the date thereof the lawyer files a written notice of appeal with the Supreme Court and serves a copy on the Association. The lawyer shall pay to the Clerk of the Supreme Court any required filing fees.
(8) Review by the Supreme Court. Within 15 days of filing a notice with the Supreme Court for review of the MCLE Board's findings and order, after such a non-compliance petition hearing, the lawyer shall cause the record or a narrative report in compliance with RAP 9.3 to be transcribed and filed with the Bar Association.
(i) The MCLE Board chairperson shall certify that any such record or narrative report of proceedings contains a fair and accurate report of the occurrences in and evidence introduced in the cause.
(ii) The MCLE Board shall prepare a transcript of all orders, findings, and other documents pertinent to the proceeding before the MCLE Board, which must be certified by the MCLE Board chairperson.
(iii) The MCLE Board shall then file promptly with the Clerk of the Supreme Court the record or narrative report of proceedings and the transcripts pertinent to the proceedings before the MCLE Board.
(iv) The matter shall be considered by the Supreme Court pursuant to procedures established by order of the Court.
(v) The times set forth in this rule for filing notices of appeal are jurisdictional. The Supreme Court, as to appeals pending before it, may, for good cause shown (1) extend the time for the filing or certification of said record or narrative report of proceedings and transcripts; or (2) dismiss the appeal for failure to prosecute the same diligently.
(9) Compliance Audits. The Association may audit an individual lawyer's compliance certification to substantiate participation in the activities listed in the certification. The Association may request records from a lawyer or sponsor for the purpose of conducting the audit and the lawyer must comply with all such requests. Where facts exist that indicate a lawyer may not have participated in the activities certified to, the lawyer may be referred to the Association's Office of Disciplinary Counsel and/or credit for the activities may be rescinded.
(j) Sponsor Duties. All sponsors must comply with the following duties unless waived by the Association for good cause shown:
(1) The sponsor must not advertise course credit until the course is approved by the Association but may advertise that the course credits are pending approval by the Association after an application has been submitted. The sponsor shall communicate to the lawyer the number of credits and denominate whether the credits are "law and legal procedure" as defined under section (f)(1), "ethics and professional responsibility" as defined under section (f)(2), or "other," meaning any of the other subjects identified in sections (f)(3)-(7).
(2) The sponsor must provide each participant with an evaluation form to complete. The forms or the information from the forms must be retained for two years and provided to the Association upon request.
(3) The sponsor must submit an attendance report in a form and manner as prescribed by the Association and pay the required reporting fee no later than 30 days after the conclusion of the course. A late fee will be assessed for failure to report attendance by the deadline.
(i) Waiver of Reporting Fee. The Association shall waive the reporting fee for a course if the course is offered for free by a government agency or nonprofit organization. This provision does not waive any late fee.
(4) The sponsor must retain course materials for four years from the date of the course. Upon request of the Association, a sponsor must submit for review any written, electronic or presentation materials including copies of audio/visual courses.
(5) The sponsor must keep accurate attendance records and retain them for six years. The sponsor must provide copies to the Association upon request.
(6) The sponsor shall not state or imply that the Association or the MCLE Board approves or endorses any person, law firm or company providing goods or services to lawyers or law firms.
(7) Accredited Sponsors. The Association may approve and accredit sponsoring organizations as "accredited sponsors" subject to procedures and fees established by the Association. Accredited sponsors have the same duties as sponsors but have the additional responsibility of approving their own courses and determining appropriate MCLE credit in accordance with this rule. Accredited sponsors pay an annual flat fee for all course applications submitted in lieu of an application fee for each individual course.
(k) Confidentiality. Unless expressly authorized by the Supreme Court or by the lawyer, all files and records relating to a lawyer's individual MCLE requirements are confidential and shall be privileged against disclosure except as necessary to conduct an investigation, hearing, and appeal or review pursuant to these rules. This provision does not apply to the Association except that such records shall not be disclosed to Association staff responsible for creating or marketing CLE products.
RULE 11.1 PURPOSE
It is of primary importance to the members of the Washington State Bar Association (referred to in these rules as the Bar Association) and to the public that lawyers continue their legal education throughout the period of their active practice of law. These rules state the minimum requirements for continuing legal education.
RULE 11.2 EDUCATIONAL REQUIREMENT
(a) Minimum Requirement. Each active member of the Bar Association, and other lawyers who are required by the APRs to complete continuing legal education credits, must complete a minimum of 45 credit hours of accredited legal education (as provided in APR 11.4) by December 31 of the last year of the lawyer's three-year reporting period as assigned by the Bar Association. Specific requirements are the following, and are described in Appendix APR 11 - Regulations of the Washington State Board of Mandatory Continuing Legal Education:
(1) A lawyer may earn all of the required credit hours, and must earn at least half of the required credits, as live credits, as described in Regulation 103(b) of Appendix APR 11.
(2) A lawyer must earn a minimum of six of the required 45 credit hours of accredited legal education in the area of ethics, as that is defined in Regulation 101(g) of Appendix APR 11.
(3) A lawyer may earn a maximum of one-half of the required credit hours for any reporting period through self-study, as defined in Regulation 103(h) of Appendix APR 11.
(4) A lawyer may earn a maximum of six credit hours annually through pro bono training and service carried out strictly in compliance with Regulation 103(f) of Appendix APR 11.
(5) A lawyer may earn a maximum of six of the required credit hours for any reporting period for participation in law school competitions, moot court, or mock trials programs, as described in Regulation 103(g) of Appendix APR 11.
(b) New Admission. Newly admitted members must complete 45 continuing legal education credits during the four full calendar years after the member's date of admission. Following the new admission period, the member shall complete 45 credits every three years as required by APR 11.2(a).
(c) Carryover of excess earned credits. If a member completes more than the required credits for any one reporting period, up to 15 of the excess credits may be carried forward and applied to that member's education requirement for the next reporting period. Of the 15 credit hours that may be carried forward to the next reporting period, pursuant to sections (a) and (b) of this rule:
(1) A maximum of two credit hours may be applied toward the ethics requirement; and
(2) A maximum of five credit hours may be applied to self-study credits.
RULE 11.3 BOARD OF MANDATORY CONTINUING LEGAL EDUCATION
There is hereby established a Board of Mandatory Continuing Legal Education (the MCLE Board) consisting of seven members. Six of the members of the MCLE Board must be active members of the Bar Association. The seventh member shall not be a member of the Bar Association. The Supreme Court shall designate a chairperson of the MCLE Board, who shall serve at the pleasure of the Court. The members of the MCLE Board shall be nominated by the Board of Governors of the Bar Association and appointed by the Supreme Court. Appointments shall be staggered for a 3-year term. No member may serve more than two consecutive terms. Terms shall end on September 30 of the applicable year.
RULE 11.4 POWERS OF THE MCLE BOARD
The MCLE Board shall:
(a) Accredit and determine the number of credit hours to be allowed for all or portions of individual courses that satisfy the education requirements of these rules and Appendix APR 11 Regulations;
(b) Accredit all or portions of the entire legal educational program of a given organization that satisfy the education requirements of these rules and Appendix APR 11 Regulations;
(c) Adopt regulations pertinent to these powers subject to the approval of the Board of Governors and the Supreme Court;
(d) Waive or modify individual compliance with the educational or time requirements of these rules upon a showing of undue hardship, age, or infirmity;
(e) Set and adjust fees and fines for failure to comply with these rules and to defray the reasonably necessary costs of administering these rules with the approval of the Board of Governors; and
(f) Waive or reduce fees or fines on a proper showing by the petitioner.
RULE 11.5 EXPENSES OF THE MCLE BOARD
Members of the MCLE Board shall not be compensated for their services, but actual and necessary expenses incurred in the performance of their duties shall be reimbursed by the Bar Association in a manner consistent with the Bar Association's reimbursement of its committee members. The Bar Association shall furnish the MCLE Board with the necessary staff to carry out its duties. The MCLE Board, directly or through the staff provided, annually shall submit a budget to the Bar Association, which shall be subject to approval by the Board of Governors.
RULE 11.6 REPORTS AND ENFORCEMENT
(a) Reporting and Other Activities.
(1) Sponsor Reports. The sponsor of each approved program (or each program for which approval is sought) must make available attendance reports to be completed by those lawyers in attendance to show the actual time spent by each lawyer in attendance. The form of the reports will be determined by the MCLE Board. The sponsor must send a report, consisting of a compilation of the information contained in these forms, to the Bar Association not later than 30 days after conclusion of the program.
(2) Other Activities. Consistent with the provisions of Appendix APR 11 Regulations, in the case of some programs for which approval has not been sought or obtained by the sponsor, or for other activities which may qualify for CLE credit under these rules, individual lawyers may apply for credit by direct application to the MCLE Board, using the form or forms specified by the MCLE Board for that purpose.
(3) Member Credit Status Reports.
(A) Not later than July 1 of each year, the Bar Association shall advise each active member and other lawyers required to report in the current reporting cycle of the number of earned credit hours reflected in that lawyer's records with the Bar Association.
(i) If the lawyers do not request changes to their records within forty-five days of the mailing of the report, the reported credits will be deemed correct.
(ii) After 45 days, the records may be changed upon a showing of good cause.
(B) By not later than December 15 of each year, a similar report shall be provided to all active members and other lawyers required to report continuing education credits.
(b) Compliance Certification. Each active member or other lawyer required to complete and report continuing legal education requirements must submit an MCLE compliance certification form by February 1 following the end of the lawyer's three-year reporting period or as approved by the MCLE Board pursuant to rule 11.4. If a lawyer has not completed the minimum education requirement for that lawyer's reporting period, the lawyer may complete and return to the MCLE Board a petition, which shall be accompanied by a declaration(s) or affidavit(s) in support of the request, for an extension of time to complete the requirements. If the petition is approved, the lawyer shall make up the deficiency, file a supplemental report with the Bar Association, and pay a late filing fee by the date set forth in the agreement or order extending the time for compliance.
(c) Delinquency.
Any lawyer required to do so who has not complied by the certification deadline, or by the date set forth in an agreement or order extending the time for compliance, may be ordered suspended from the practice of law by the Supreme Court.
(1) Pendency Notice. The MCLE Board shall send a written notice of the pendency of suspension proceedings by certified mail to any lawyer who has not complied with either the educational or certification requirements of APR 11 and the Appendix APR 11 Regulations by the certification deadline for that lawyer's reporting period or extended deadline granted by the MCLE Board. It will be sent to the lawyer's address of record with the Bar Association. The notice shall advise the member of the pendency of suspension proceedings and state that the MCLE Board will recommend suspension of the lawyer's license to practice law unless the lawyer becomes compliant or completes and returns to the MCLE Board a petition for extension of time, exemption from compliance, or ruling of complete compliance as set forth below. The MCLE Board shall include with the pendency notice a copy of the form of petition to be used.
(2) Petition for extension, waiver, modification or finding of compliance.
(A) Timing. Within 10 days of receipt of the pendency notice, a lawyer may complete and return to the MCLE Board a petition requesting an extension of time, a waiver of compliance, modifications to the requirements, or a ruling by the MCLE Board of compliance with the standard requirements.
(B) Supporting documents. The petition may be accompanied by supporting affidavit(s) or declaration(s).
(3) No timely petition filed; suspension recommendation. Unless such petition is filed, the noncompliance is deemed agreed. The MCLE Board shall report the lawyer's noncompliance to the Supreme Court with its recommendations for appropriate action. The Supreme Court shall enter such order as it deems appropriate. The provisions of RAP 17.4 and RAP 17.5 shall apply to any motion for reconsideration of such order.
(4) Petition filed. If such petition is filed, in its consideration of the petition, the MCLE Board shall consider factors of undue hardship, age, or disability. One of the following shall result from consideration of a petition:
(A) Approval without hearing. The MCLE Board may, in its discretion, approve the petition without hearing; or
(B) Agreement with lawyer. The MCLE Board may enter into agreement on terms with such lawyer as to time and requirements for achieving compliance with the provisions of APR 11.2(a) and APR 11.6(b); or
(C) Hearing on petition. If the MCLE Board does not approve such petition or enter into an agreement with terms, the MCLE Board (or a subcommittee of one or more MCLE Board members) shall hold a hearing upon the petition.
(i) The Board shall give the lawyer at least 10 days notice of the time and place thereof.
(ii) Testimony taken at the hearing shall be under oath, and an audio or stenographic record will be made at the request and expense of the lawyer. The oath shall be administered by the chairperson of the MCLE Board or the chairperson of the subcommittee.
(iii) For good cause shown the MCLE Board may rule that the lawyer has substantially complied with these rules for the reporting period in question or, if he or she has not done so, it may grant the lawyer an extension of time within which to comply, upon terms it deems appropriate.
(iv) For each hearing, the MCLE Board shall enter written findings of fact and an appropriate order. The MCLE Board shall mail a copy of the findings and order forthwith to the lawyer at the address on file with the Bar Association.
(v) The MCLE Board's order is final unless within 10 days from the date thereof the lawyer files a written notice of appeal with the Supreme Court and serves a copy on the Washington State Bar Association. The lawyer shall pay to the Clerk of the Supreme Court a docket fee of $250.00.
(d) Review by the Supreme Court. Within 15 days of filing a notice with the Supreme Court for review of the MCLE Board's findings and order, after a noncompliance petition hearing, the lawyer shall cause the record or a narrative report in compliance with RAP 9.3 to be transcribed and filed with the Bar Association.
(1) The MCLE Board chairperson or chairperson of the subcommittee shall certify that any such record or narrative report of proceedings contains a fair and accurate report of the occurrences in and evidence introduced in the cause.
(2) The MCLE Board shall prepare a transcript of all orders, findings, and other documents pertinent to the proceeding before the MCLE Board, which must be certified by the MCLE Board chairperson or chairperson of the subcommittee.
(3) The MCLE Board shall then file promptly with the Clerk of the Supreme Court the record or narrative report of proceedings and the transcripts pertinent to the proceedings before the MCLE Board.
(4) The matter shall be heard in the Supreme Court pursuant to procedures established by order of the Court.
(e) Time. The times set forth in this rule for filing notices of appeal are jurisdictional. The Supreme Court, as to appeals pending before it, may, for good cause shown:
(1) Extend the time for the filing or certification of said record or narrative report of proceedings and transcripts; or
(2) Dismiss the appeal for failure to prosecute the same diligently.
(f) Costs. If the lawyer prevails in his or her appeal before the Supreme Court, the lawyer shall be awarded costs against the Bar Association in an amount equal to his or her reasonable expenditures for the preparation of the record or narrative report of proceedings.
(g) Change of Status. Once a lawyer has been ordered suspended from practice for noncompliance with these rules, the lawyer affected must comply with the then applicable regulations of the MCLE Board and the WSBA Bylaws in order to return to active status.
RULE 11.7 CONFIDENTIALITY
The files and records of the Bar Association, as they may relate to or arise out of any failure of a member of the Association, or other lawyers, to satisfy these continuing legal education requirements, shall be deemed confidential and shall not be disclosed except in furtherance of its duties, or upon request of the lawyer affected, or pursuant to a proper subpoena duces tecum, or as directed by this Court. The records and information contained therein should not be available to any sponsoring organization, including the Continuing Legal Education Department of the Bar Association. In any matter referred to the Supreme Court under these rules, the file, record, briefs, and arguments shall not be subject to this confidentiality rule.
APPENDIX APR 11. REGULATIONS OF THE WASHINGTON STATE BOARD OF CONTINUING LEGAL EDUCATION
Approved as Amended by the Board of Governors and Supreme Court
Regulation 101 Terminology
(a) "Accredited activity" means any method by which a lawyer may earn MCLE credits, and includes courses, self study, teaching, pro bono legal services, law school competitions, nexus, and writing and editing, as described in these regulations.
(b) "Accredited sponsor" means an organization that meets the requirements of Regulation 105 for accreditation of its entire legal education program subject to review by the MCLE Board.
(c) "APR 11" means Admission to Practice Rule 11, including subsequent amendments.
(d) "Attending" means:
(1) Presenting for or being present in an audience, either in person or through an electronic medium, at an accredited live continuing legal education course at the time the course is actually being presented; or
(2) Engaging in self-study using pre-recorded audiovisual or audio-only courses that have been accredited by the MCLE Board.
(e) "Chairperson" means the chairperson of the MCLE Board, except where otherwise indicated.
(f) "Course" means an organized program of learning dealing with matter directly relating to the practice of law or legal ethics, including anti-bias and diversity training, and substance abuse prevention training.
(g) "Ethics" includes discussion, analysis, interpretation, or application of the Rules of Professional Conduct, Rules for Enforcement of Lawyer Conduct, Code of Judicial Conduct, judicial decisions interpreting these rules, and ethics opinions published by bar associations relating to these rules. It also includes the general subject of professional conduct standards for lawyers representing clients and the public interest. Ethics credits may also be awarded for accreditable activities in the areas of diversity and anti-bias with respect to the practice of law, or the risks to ethical practice associated with diagnosable conditions of stress, anxiety, depression, and addictive behavior.
(h) "Executive Secretary" means the executive secretary of the MCLE Board.
(i) "Form 1" means the CLE course accreditation application form.
(j) "Governmental agency" means federal, state, local, and military agencies and organizations, and organizations primarily funded by one or more of the preceding, but excludes colleges, universities, law schools, and graduate schools.
(k) "Groups 1, 2, and 3" means three groups of lawyers for purposes of the reporting periods to which they are assigned: Group 1 consists of lawyers admitted through 1975 and in 1991, 1994, 1997, 2000, etc.; Group 2 consists of lawyers admitted 1976 through 1983, and in 1992, 1995, 1998, etc.; and Group 3 consists of lawyers admitted 1984 through 1990 and in 1993, 1996, 1999, etc. New admittees shall be assigned to these Groups in the same manner upon admission.
(l) "Legal education" means activities that meet the requirements of these regulations and that maintain or enhance the competence of lawyers with respect to the practice of law.
(m) "MCLE Board" means the Washington State Board of Mandatory Continuing Legal Education.
(n) "Participating" means taking part in an accredited continuing legal education course as a contributing member of a panel.
(o) "Qualified legal services provider" means a not-for-profit legal services organization whose primary purpose is to provide legal services to low income clients, as defined in APR 8 (e)(2).
(p) "Quorum of the MCLE Board" means four or more members of the Board.
(q) "Teaching" means the delivery of a prepared talk, lecture or address at an accredited continuing legal education course.
Regulation 102. Standards for Approval and Accreditation. To be approved for credit, all courses must meet all of the following criteria, except where otherwise stated.
(a) A course must have significant intellectual or practical content relating to the practice of law or legal ethics. In determining whether courses have such content, the following factors should be considered:
(1) The topic, depth, and skill level of the material;
(2) The level of practical or academic experience or expertise of the presenters or faculty;
(3) The intended audience, which may include others besides lawyers;
(4) The written materials, which must be of high quality, in a hardcopy or electronic format, and distributed to all attendees at or before the course is presented. In some unusual cases, written materials may not be necessary, but that is the exception and not the rule; and,
(5) The physical setting, which must be suitable to the educational activity and free from unscheduled interruption.
(b) Any written, electronic, or presentation materials must be available for submission and review upon request by the MCLE Board. However, in the case of government-sponsored, closed seminars, where materials are subject by law to confidentiality rules or regulations, those portions of the materials subject to confidentiality may be redacted from the overall submission, provided that a list of the redacted materials, a general summary of the redacted materials, and the basis for confidentiality, is supplied.
(c) The course must be open to audit by the MCLE Board or its designees at no charge. However, this requirement may be waived in cases of government-sponsored, closed seminars if the reason stated on the Form 1, as required by Reg 104 (a)(3), is approved by the MCLE Board.
(d) The sponsor must keep accurate attendance records and retain them for six years. The sponsor must provide copies to the MCLE Board upon request. In addition, the sponsor must report attendance within 30 days of the end of the program as required by APR 11.6 (a)(1).
(e) The attendees must be provided with a critique form or evaluation sheet to complete. The completed forms, or a compilation of all numerical ratings and comments, must be retained by the sponsor for two years and copies must be provided to the MCLE Board upon request.
(f) There must be no marketing of any law firm or any company that provides goods or services to lawyers or law firms during the presentation of the program in the room where the program is being held.
(g) Aside from indicating that an activity has been accredited for the number and type of credits approved by the MCLE Board, people and organizations must not state or imply that the WSBA or the MCLE Board approves or endorses any person, law firm, or company providing goods or services to lawyers or law firms.
(h) A course must not focus directly on a pending case, action or matter currently being handled by the sponsor if the sponsor is a private law firm, corporate legal department, or a government agency.
(i) If the course is sponsored by a private law firm, no client, former client, or prospective client of the private law firm may directly or indirectly pay for or underwrite the course, in whole or in part.
Regulation 103. Earning and Calculating Credits. WSBA MCLE staff, the Executive Secretary, or the MCLE Board will apply APR 11 and these regulations to determine approval or denial of accreditation, and to determine the number of credits a lawyer can earn for each activity.
(a) Accreditable activities. A lawyer may earn continuing legal education credit by attending, teaching, or participating in accredited continuing legal education activities, subject to all restrictions, limitations, and conditions set forth in APR 11 and these regulations.
(1) A lawyer may earn credits through an accreditable activity even if neither the lawyer nor the activity is in Washington State (see Regulation 103 (e)(1), 103(k), and 107(e)); and
(2) To be accreditable, an activity must have no attendance restrictions based on race, color, national origin, religion, creed, gender, age, disability, sexual orientation, or marital status.
(3) A lawyer may earn teaching and preparation credits through teaching a pre-admission course required by APR 5(b) and APR 18 (c)(1)(i)
(b) Live credits. A lawyer may earn "live credits" by attending in person or via an electronic medium, or teaching or participating in an accredited course at the time the course is actually being presented.
(1) Teleconferences, videoconferences, and webcasts are considered "live" if there are presenters or expert moderators available to all course attendees at the time the course is actually being presented and all attendees can hear or see other attendees' questions and the resultant responses at the time they happen.
(2) Viewings of pre-recorded courses, presented by one or more expert moderators qualified and available at the time of the viewing to answer questions and expand on topics may also be considered "live".
(3) Writing credits, as defined in Regulation 103(j), are considered to be live credits.
(c) Credit for attending accredited courses. A lawyer may earn one credit for each 60 minutes spent attending actual instruction at an accredited course. A lawyer may earn no more than eight credits per day spent attending courses. A lawyer may earn credit only once for attending the same approved course.
(d) Credit for teaching or participating in accredited courses. A lawyer may earn credit by teaching or participating in an accredited continuing legal education course. Additionally, a lawyer who is teaching or participating in an accredited course may earn one credit for each 60 minutes actually spent by the lawyer preparing for the presentation of the course, up to a maximum of 10 credits per course. A lawyer may earn credit only once for teaching or participating in the same accredited course, regardless of the number of times the course is presented.
(i) EXAMPLE: Lawyer X gives a one hour presentation and attends the other five hours at a six credit hour course presented in three cities, and attends the rest of the course on each of those days. If Lawyer X spent 10 hours preparing for the presentation, Lawyer X may earn a total of 16 credits.
(ii) EXAMPLE: Lawyer X gives a two hour presentation and attends the other four hours at a six credit hour course presented in three cities, and attends the rest of the course on each of those days. If Lawyer X spent 15 hours preparing for the presentation, Lawyer X may earn a total of 16 credits.
(e) Credit for attending or teaching law school courses.
(1) Attending. A lawyer may earn one credit for each 60 minutes of instructed class time the lawyer attends in law school courses at the J.D. or advanced education level. The course may be taken within or outside the United States, and the lawyer is not required to take or be successful on any examination given in connection with the course in order to earn CLE credits for attending the course. To earn credit, the lawyer must:
(A) Arrange for the instructor or law school registrar to verify the lawyer's actual attendance at the various sessions of the course and to report such attendance to the MCLE Board; and
(B) Comply with the applicable regulations of the law school or university involved.
(2) Teaching. Full time teachers and lawyers whose primary employment is teaching law school courses may not earn credit for teaching or preparation of law school courses, but a lawyer who is acting as a part-time adjunct professor or lecturer may earn credit in connection with that lawyer's first presentation of a specific law school course, as follows:
(A) Presentation time-one credit for each 60 minutes of presentation time for that lawyer's first presentation of a specific law school course, up to a maximum 15 credits for actual presentation time; and
(B) Preparation time-one credit for each 60 minutes the lawyer spends preparing for each 60 minutes of presentation time, up to a maximum of 10 credits of actual preparation time for each 60 minutes of presentation time.
(f) Credit for pro bono legal services: A lawyer may earn six credits annually if:
(1) The lawyer receives at least two hours of education in a given calendar year, under the auspices of a qualified legal services provider, which may consist of:
(A) Not less than two hours of training in MCLE Board-approved live presentation(s); or
(B) Not less than two hours individually viewing or listening to pre-recorded training courses approved by the MCLE Board; or
(C) Not less than two hours of any combination of the foregoing training; or
(D) Not less than two hours serving as a mentor to a participating lawyer who has completed the foregoing training; and
(2) The lawyer completes not less than four hours of pro bono work in that same calendar year, by:
(A) Providing legal advice, representation, or other legal assistance to low-income client(s) through a qualified legal services provider; or
(B) Serving as a mentor to other participating lawyer(s) who are providing legal advice, representation, or assistance to low-income client(s) through a qualified legal services provider.
(g) Credit for law school competitions. A lawyer may earn one general - not ethics - credit for each 60 minutes spent judging or preparing law school students for law competitions, mock trials, or moot court arguments at an ABA accredited law school. Up to a maximum of six credits per reporting period may be earned provided the following conditions are met:
(1) Prior to the event, the sponsor provides the lawyer "judge" training in the feedback process to be used by the "judge" to give performance feedback to each student during the event. Such training must incorporate the requirements of Regulation 102(a), and it can be conveyed by live or video-taped training, a written outline of points to be covered by the "judge', or other acceptable method.
(2) The lawyer "judge" provides specific performance feedback to each student participant during the event.
(3) The sponsor issues appropriate certification documenting the name of the lawyer, the activity name, date, and location, and the number of CLE credits earned.
(4) The lawyer does not earn credits for preparation time or for grading written briefs or other written papers in connection with this type of activity.
(h) Credit for self-study. A lawyer may earn credit for self-study by completing MCLE Board-approved pre-recorded audiovisual or audio-only courses, under the following conditions:
(1) Requirements for lawyers.
(A) For all self-study courses, the lawyer must report on a Form 1 for each activity:
(i) The sponsor and title of the course;
(ii) The original date the activity was recorded;
(iii) The date the lawyer completed the course; and
(iv) The number of credits for which the course was approved.
(B) The lawyer must declare on the reporting period CLE Certification form that the lawyer did not knowingly violate any copyright laws in earning the credits.
(2) Requirements for sponsors regarding accreditation of self-study courses. For all pre-recorded courses approved for credit by the MCLE Board:
(A) The sponsor must affix on the outside of the recording:
(i) The name of the sponsor;
(ii) The name of the course;
(iii) The date originally recorded;
(iv) The total running time in hours and minutes; and
(v) The number of credits for which it has been approved.
(B) Sponsors are not required to submit a copy of the self-study course with the Form 1, but must provide copies to the MCLE Board on request.
(C) If the live course was approved by the Board, the recorded version of that course is automatically approved if the sponsor creates a "duplicate" Form 1 at the MCLE website or submits a paper Form 1 for the recorded version of the course.
(D) Written materials distributed at the live course must also be distributed with the pre-recorded course.
(E) The accreditation of the pre-recorded course expires five years after the date the course was originally recorded, except those determined by the MCLE Board to be purely skills training courses.
(i) Credit for nexus courses. A lawyer may earn credits for actually attending, teaching, or participating at a course that does not qualify for approval under these regulations and does not directly deal with the practice of law but that is substantially related to the lawyer's area of practice. To earn such credits, the lawyer must demonstrate that the topic, depth, and skill level will improve the lawyer's competence to practice law.
(j) Credit for writing and editing activities. Credit for writing or editing activities is granted sparingly, and only on a case by case basis. A lawyer may earn one live credit for every 60 minutes spent in writing and editing activities, up to a maximum of 10 live credits per writing activity, under the following conditions:
(1) The writing or editing in question meets the standards of these regulations;
(2) The writing is published for the education of the Bar by a recognized publisher of legal works; and
(3) The writing or editing is not performed for or on behalf of a client or prospective client, for marketing purposes, or in the course of the regular practice of law.
(k) Credit for courses for lawyers in foreign countries and/or remote locations in the United States.
(1) A lawyer may earn credit for programs outside the United States, including courses concerning laws of jurisdictions outside the United States, if those courses are approved for credit by the MCLE Board.
(2) A lawyer residing in a foreign country where standard live CLE courses are unavailable may earn credit for courses that do not fully meet the standards of these regulations and which would not be approved if offered within the United States. In determining whether to grant credit for such courses, the MCLE Board shall consider, among other things, the availability of courses in the area involved and the good faith attempts of the lawyer to comply with the requirements of APR 11 and these regulations.
(3) With approval from the MCLE Board, a lawyer in a foreign country with no reasonable opportunities for attendance at live CLE programs may earn a maximum of 45 credits per reporting period through approved self-study courses or by attending informal CLE programs developed and presented by lawyers in the foreign jurisdiction.
(4) With approval from the MCLE Board, a lawyer in a location within the United States that is very remote and removed from reasonable opportunities for attendance at live CLE programs may earn a maximum of 45 credits per reporting period through approved self-study courses. Such approval will be granted sparingly.
(l) Examples of activities that may qualify for credit. The following types of activities may be approved for credit, subject to the other provisions of these regulations:
(1) Courses about running a law office - in particular, docket control, malpractice avoidance, education on substance abuse by lawyers and other legal professionals, time management, increasing office efficiency, business planning, office financial management, billing and collections procedures, office technology, and customer service, as each relates to the practice of law.
(2) Courses designed to improve a lawyer's skills for communicating with clients or to improve the lawyer-client relationship.
(3) Courses on how to conduct electronic legal research.
(4) Alternate dispute resolution courses.
(5) A lawyer's attendance at Bar review/refresher courses for jurisdictions other than Washington, on the basis of one credit for each classroom hour of actual instruction or audio/videotaped instruction.
(6) Courses sponsored by or involving participation by a company that provides services or products to the legal community, but only if the written material does not include prepared promotional literature, and:
(A) There is no marketing of that company during the program; or
(B) There is equal treatment in any discussion and written materials of alternate vendors of the particular product or service.
(m) Examples of activities that do not qualify for credit. The following types of activities will not be approved for credit:
(1) Teaching a legal subject to non-lawyers in an activity or course that would not be approved for credit if taught to lawyers.
(2) Programs primarily designed to teach lawyers how to improve market share, attract clients or increase profits unless the program primarily focuses on topic areas that include, but are not limited to, marketing ethics, case law updates, conflicts of interest, or conflicts of law.
(3) Programs primarily designed to be a sales vehicle for a service or product.
(4) Writing for or on behalf of a client, or for the regular practice of law.
(5) Meritorious legal work, such as pro bono work, except as provided in Reg. 103.(f).
(6) Bar review/refresher courses offered in preparation for the Washington State Bar examination.
(7) Jury duty.
(8) Programs primarily designed to enhance a person's ability to present or prepare a continuing education program.
(9) Private law firm, corporate legal department, or government agency sponsored courses that are focused directly on a pending case, action or matter being handled by the private law firm, corporate legal department or government agency sponsor.
Regulation 104. Applying for Accreditation of an Activity. Subject to the requirements and restrictions of APR 11 and these regulations, sponsoring organizations or individual lawyers may apply for accreditation of an activity. The MCLE Board, with the approval of the WSBA Board of Governors, may adopt and assess a fee on sponsoring organizations or individuals for the purpose of defraying the costs of processing applications for accreditation of courses or activities.
(a) Application by sponsor.
(1) Submitting Form 1. A sponsoring organization may apply for accreditation of a continuing legal education course or activity by submitting a completed Form 1 to the WSBA MCLE staff, together with payment of the required fee, if any.
(2) Private law firm and corporate legal department sponsors. Private law firms and corporate legal departments must:
(A) Register as the sponsor of a course if they either present the course or contract with an outside CLE provider to present the course.
(B) Submit completed Form 1s by no later than 14 days before the first presentation day of the activity. Failure to submit the Form 1 at least 14 days in advance of the activity may result in imposition of a late fee and/or denial of accreditation for the activity.
(3) Government sponsors. Government sponsors must:
(A) Register as the sponsor of a course if they either present the course or contract with an outside CLE provider to present the course;
(B) Submit completed Form 1s by no later than 14 days before the first presentation day of the activity. Failure to submit the Form 1 at least 14 days in advance of an activity may result in imposition of a late fee and/or denial of the accreditation of the activity; and
(C) If a closed course cannot be audited by the MCLE Board or its designees due to confidentiality rules or regulations, this must be stated on the Form 1.
(4) Accreditation of same course. A sponsor may apply for accreditation of a course that is the same as an accredited course presented by that sponsor within 12 months from the original date of accreditation, by creating a duplicate Form 1 on the MCLE website or submitting a paper Form 1 for each subsequent presentation. Such duplicate or paper Form 1s must be submitted by no later than one day before the subsequent presentation of the previously approved activity.
(5) Accreditation statement in brochures. If a course has been approved and accredited, the sponsoring organization may announce in informational brochures and/or registration materials: "This course has been approved for ______ hours of Washington MCLE credit, including _____ hours of ethics credit."
(6) Reporting attendance. After the conclusion of the presentation of a course, the sponsor must submit an attendance report showing the actual attendance time of each lawyer, either through the MCLE website or by submitting it to the Executive Secretary, within 30 days after the program.
(b) Application by individual lawyer.
(1) Submitting Form 1. A lawyer may apply to receive credit for a continuing legal education course or activity by submitting a completed Form 1 to the WSBA MCLE staff for that activity, along with any other materials or information required by these regulations or requested by the WSBA MCLE staff, the Executive Secretary, or the MCLE Board.
(2) No individual application for private law firm or corporate legal department sponsored course. A lawyer who is associated with or employed by a private law firm or corporate legal department that maintains an office within Washington State may not apply to receive credit for a continuing legal education course sponsored by that private law firm or corporate legal department for which the sponsor did not submit a completed Form 1.
(3) Individual lawyer as sponsor. A lawyer who is the sponsor of a CLE program must submit a Form 1 as a sponsor, not as an individual lawyer, and follow all rules and regulations applicable to sponsors.
Regulation 105. Accredited Sponsors.
(a) General provisions. The Executive Secretary may approve sponsoring organizations as "accredited sponsors". The following apply to all accredited sponsors:
(1) Accredited sponsors are not required to seek approval for individual courses that they sponsor.
(2) All courses sponsored by an accredited sponsor and in compliance with APR 11 and these regulations are considered approved by the MCLE Board, subject to review by the MCLE Board.
(3) For any course it is sponsoring, an accredited sponsor may state the following (or something substantially similar) in the promotional or registration materials: This activity has been approved for Washington State MCLE credit in the amount of ____ hours (of which ____ hours will apply to ethics credit requirements).
(4) Approval of a course and/or the award of credits made by an accredited sponsor may be reviewed at any time, and accepted or rejected by the MCLE Board, Executive Secretary, and/or WSBA MCLE staff, based on the course's conformance to Regulation 102.
(5) The MCLE Board may set and assess fees and fines, or revoke an organization's accredited sponsor status, for repeated failure to correctly award credit for courses, failure to pay the annual accredited sponsor fee, or for failure to comply with accredited sponsor reporting or other requirements.
(6) Except as specified in this regulation, an accredited sponsor shall continue to be subject to and governed by all provisions of APR 11 and these regulations.
(b) Duties of accredited sponsors. Any organization that is approved as an accredited sponsor must:
(1) Accurately calculate the number of credits to be awarded for each course, by applying the provisions of Regulations 102 and 103.
(2) Submit an accurately completed electronic Form 1 for a course at least one day prior to presentation of the live course or one day prior to making a pre-recorded course available to lawyers.
(3) Keep accurate attendance records for each live course and retain them for six years. An attendance report showing the actual attendance of each lawyer must be submitted through the MCLE website within 30 days of completion of the course.
(4) Provide a critique form or evaluation sheet to all live course attendees. The accredited sponsor must retain the completed forms, or a compilation of all numerical ratings and comments, for two years and provide copies to the MCLE Board upon request.
(5) Demonstrate a continuing ability to provide high-quality continuing legal education activities and to correctly determine credit awards for those activities.
(6) At least annually, provide to the MCLE Board a list of all its course offerings, identifying the number of lawyers and non-lawyers attending each program, and providing any additional information required by the MCLE Board.
(7) Pay any required annual accredited sponsor fee.
(8) Permit course audits by the MCLE Board or its designees at no charge.
(9) For any pre-recorded programs not originally offered as a live program by the sponsor, the sponsor must:
(A) Review the content and materials of each such course; and
(B) Ensure that the course is in compliance with all provisions of APR 11 and these regulations.
(c) Applying to become an accredited sponsor.
(1) To apply to become an accredited sponsor, an organization must:
(A) Submit a completed application form and all required documentation, in the required format, to the Executive Secretary, along with payment of any required fee; and
(B) Provide proof to the Executive Secretary that the sponsoring organization has at least three years of previous experience in sponsoring and presenting at least 30 unique continuing legal education activities a year, and that the organization can correctly apply APR 11 and these regulations to determine and award credit for such activities; and
(C) Provide on request information about 10 courses from the previous three years, selected by the Executive Secretary, for evaluation of course content and attendee evaluations.
(2) No private law firm or corporate legal department may be an accredited sponsor.
(3) A request for accredited sponsor status shall be granted or denied by the Executive Secretary after consideration of the application and other materials submitted.
(4) An adverse determination by the Executive Secretary regarding an application for accredited sponsor status may be appealed to the MCLE Board for a final review and decision on the application in a manner consistent with the provisions of Regulation 106.(c).
Regulation 106. Delegation by MCLE Board and Executive Secretary.
(a) To committees: The MCLE Board may delegate tasks and duties to committees for the purpose of administering and enforcing APR 11 and these regulations.
(b) To Executive Secretary.
(1) Subject to review by the MCLE Board, the Executive Secretary is authorized to act on behalf of the MCLE Board, in reviewing, granting or denying applications for accreditation of continuing legal education activities or applications for accredited legal sponsor status, ensuring compliance with reporting and other requirements and regulations, granting or denying petitions for waivers or for extension of time deadlines, and in providing interpretations of APR 11 and these regulations. The Executive Secretary may delegate to WSBA MCLE staff such of these duties and responsibilities as may be appropriate for timely and orderly administration of the Board's work, subject to review by the Executive Secretary and MCLE Board.
(2) Pursuant to guidelines established by the MCLE Board, the Executive Secretary shall provide a written description of any action taken in response to written requests for approval of courses or accreditation of sponsors, awarding of credit for attending, teaching or participating in approved courses, writing and editing, waivers, extensions of time deadlines and interpretations of APR 11 and these regulations. The Executive Secretary may seek a determination of the Board before making such response.
(3) Upon request by the MCLE Board, the Executive Secretary shall report on determinations made since the last meeting of the MCLE Board.
(c) Review of Executive Secretary's actions.
(1) Any person or organization affected by any adverse determination or any question of interpretation of these regulations or APR 11 by the Executive Secretary may seek MCLE Board review by filing a written petition.
(2) The petitioning person or organization may present information to the MCLE Board in writing or in person or both.
(3) The MCLE Board shall review petitions for review of adverse determinations made by the Executive Secretary.
(4) The MCLE Board may take appropriate action after review of a petition and any other relevant information presented to it, and the Board shall advise the affected person or sponsoring organization in writing of its findings and any action taken.
Regulation 107. Exemptions, Waivers, Modifications
(a) Undue hardship, age, or disability. All active members of the WSBA, and other lawyers as established from time to time by the APRs or these regulations, are required to comply with the provisions of APR 11 and these regulations. The MCLE Board may grant extensions, waivers or modifications of the time deadlines or education requirements because of undue hardship, age, or disability of a lawyer. Exemptions, waivers, or modifications based upon undue hardship, age or disability should be granted only sparingly. All applications for exemptions, waivers and modifications shall be retained by the MCLE Board.
(1) Applications for extensions, waivers or modifications must be made in writing and supported by a sworn statement in the form of an affidavit or declaration.
(2) The applicant must establish to the satisfaction of the MCLE Board that such condition of undue hardship, age, or disability warrants granting an exemption, waiver, or modification.
(3) An application for exemption, waiver, or modification, including the sworn statement in support thereof, must be filed for each reporting period for which the exemption, waiver or modification is sought.
(4) Neither a lawyer's status with the WSBA, nor the lawyer's other duties and obligations as established by the WSBA bylaws or by court rules and regulations, are affected by the granting of an exemption, waiver, or modification of the continuing legal education requirements under this regulation.
(5) The MCLE Board may revoke an exemption, waiver, or modification if there is a change in the facts or circumstances upon which such exemption, waiver, or modification was granted.
(b) Judicial exemption.
(1) Qualified WSBA Judicial members, except for administrative law judges, are exempt from the continuing legal education requirement established by APR 11.
(c) Legislative and gubernatorial exemption.
(1) Active WSBA members otherwise subject to the continuing legal education requirements of APR 11, who are also members of the Washington State Congressional Delegation or members of the Washington State Legislature, or who are currently serving as the Governor of Washington State, are exempted from the requirements of APR 11 for the reporting period(s) during which they are in office.
(2) This exemption does not apply to active lawyers who are:
(A) Serving in the legislature of any other state;
(B) Serving in the administrative branch of any state government; or
(C) Serving on the staff of any member of the Washington State Congressional Delegation, the Washington State Legislature, or the Washington State Governor.
(d) Active military duty. Active lawyers who are employed in the armed forces of the United States may be granted an exemption, waiver, or modification of the continuing legal education requirement established by APR 11, upon proof of undue hardship.
(e) No exemption for active lawyers living outside the United States. Active lawyers who live or are employed outside the United States are required to comply with the continuing legal education requirements of APR 11, unless they otherwise qualify under these regulations for an exemption for a different reason.
Regulation 108. Reinstatement of Continuing Education Requirements.
(a) A lawyer who was not required to comply with the education or reporting requirements of APR 11 and these regulations for any reason, who returns to being subject to those requirements, retains the lawyer's original assigned reporting group (Group 1, 2, or 3), and is subject to the requirements immediately.
(b) Reinstatement is conditioned on compliance with the reinstatement requirements of the WSBA Bylaws.
Regulation 109. Reinstatement of Lawyers Suspended from Practice for Failure to Comply with APR 11
(a) To be reinstated to active status with the WSBA after being suspended from practice for failure to comply with APR 11 and its regulations, a lawyer must:
(1) File a completed application to return to active status with the WSBA, together with any required application fee;
(2) Make up any deficiency and fully comply with the provisions of APR 11 and these regulations;
(3) Pay all required fees, late fees, and/or penalties; and
(4) Fully comply with any additional requirements imposed by the Admission to Practice Rules or the WSBA Bylaws.
(b) Once a suspended lawyer has complied with the provisions of Regulation 109(a), the MCLE Board shall recommend to the Supreme Court that the suspended lawyer be reinstated to active status, and refer the matter to the Supreme Court for entry of an appropriate order.
Regulation 110. Rulemaking Authority.
(a) The MCLE Board, subject to the approval of the Board of Governors and the Supreme Court, has continuing authority to make regulations consistent with APR 11 in furtherance of the development and regulation of continuing legal education for Washington lawyers.
(b) The MCLE Board may adopt policies consistent with these regulations to provide guidance in the administration of these regulations and APR 11. The MCLE Board will notify the Board of Governors of any policies that it adopts. Unless the Board of Governors objects, such policies will become effective 60 days after promulgation by the MCLE Board.
(c) Subject to approval by the WSBA Board of Governors, the MCLE Board may adopt and assess any fees that may be required to timely and appropriately administer APR 11 and these regulations, as well as to offset the reasonably necessary costs of all functions under APR 11 and these regulations that are performed by the MCLE Board and its designees.
Regulation 111. Confidentiality.
The files and records of the MCLE Board and/or the WSBA relating to or arising out of a lawyer's failure to comply with the requirements of APR 11 and these regulations are confidential. Such records shall not be disclosed except in furtherance of the MCLE Board's or WSBA's duties, or upon the affected lawyer's request, the Supreme Court's direction, or pursuant to a proper subpoena duces tecum.
Regulation 112. Out-of-State Compliance
(a) The MCLE Board has determined that the Mandatory Continuing Legal Education requirements in Oregon, Idaho, and Utah substantially meet Washington's continuing legal education requirements. These states are designated as comity states.
(b) A lawyer whose principal place of business is not in Washington may comply with these rules and regulations by filing a certificate of compliance from a comity state MCLE office that certifies that the lawyer is subject to the MCLE requirements of that other jurisdiction and that the lawyer has complied with that other jurisdiction's MCLE requirements during the lawyer's reporting period.
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 spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040. | ||||||||||||||||