Mandatory continuing legal education is here. Starting Jan. 1, every lawyer licensed to practice in New Jersey, including judges, law school professors and limited-license in-house counsel, must take a minimum of 24 hours of continuing legal education courses every two years, the state Supreme Court declares in a newly adopted rule.
Rule 1:42, which was proposed and put out for public comment in October, is the culmination of a two-year long study by the court's Ad Hoc Committee on Continuing Legal Education. [See notice to the Bar.]
Under the rule, lawyers may satisfy the requirements with all "alternative verifiable learning formats," including videotape, satellite simulcast and the Internet. Reciprocal credit will be given for courses taken from other jurisdictions.
Twelve credit hours can be carried over from one cycle to the next, except for courses in the area of ethics or professionalism, which must make up four of the requisite 24 credits in every cycle. Lawyers who serve on a district ethics committee will get credit for two of those four hours.
The court also abolished outright the Skills and Methods Course, until now required of all newly admitted attorneys. But new admittees will have to "bridge the gap" during their first two-year cycle by choosing subjects from a special list.
Compliance with mandatory continuing legal education, or MCLE, will be on the honor system, with lawyers required to certify every two years that they have fulfilled their obligation. They must also "maintain all necessary records and documentation to demonstrate such compliance in accordance with regulations adopted under these Rules."
Self-reporting, which was favored by the State Bar Association, was not part of the MCLE system as originally proposed. The ad hoc committee, chaired by former N.J. Supreme Court Justice Peter Verniero, wanted a "transcript method," a central uniform tracking system with providers sending in attendance records. Another rejected idea, suggested by the Institute for Continuing Legal Education, the state's largest single provider of such services, would have put ICLE in charge of tracking compliance.
The self-monitoring will cost lawyers $4 per year, which will be added to the annual attorney registration fee. The court said the money was needed because under the transcript method, it could have collected up to $2 per credit for out-of-state courses or those using alternative learning formats, money foregone under the self-reporting approach. So it imposed the $4 fee to pay for staff to administer MCLE and for such costs as a computer database and tracking system.
Extensions of time to comply will be available on a case-by-case basis "for good cause shown," including illness.
Though the two-year cycle will not start until Jan. 1, 2010, lawyers are entitled to credit for certain courses taken as far back as Jan. 1, 2009. The retroactive credit, which was announced by the court on Aug. 13, is available for courses taken to become a certified attorney, skills and methods courses, out-of state CLE courses and possibly others.
The court also created an 11-member Board on Continuing Legal Education, chaired by Justice Roberto Rivera-Soto, that will administer the program and promulgate the governing regulations. Board members, who serve staggered, three-year terms, are immunized from suit over their board activities.
The board's duties include deciding which courses and activities qualify for credit, designating education providers and setting the fees that will be charged to attorneys and providers to fund the administration of the program. The board has instructions to revisit the $4 fee after the first two years and decide if an annual assessment is still needed.
To make sure MCLE is up and running as of Jan. 1, the board is authorized to act before it adopts controlling regulations. For instance, it can determine the MCLE subject areas and what credit to give for completed skills and methods courses. But until it puts rules in place, it can only approve courses that require attorney attendance, ruling out online instruction for the interim.
Verniero, now with Sills Cummis & Gross in Newark, says "I feel very good about the end result" and he praised the court, saying it "took the time necessary to create an ad hoc committee to review various proposals and to be very comprehensive in its approach."
State Bar president Allen Etish released a statement saying the association is proud the final rule incorporated many of the bar association's recommendations, "most notably that attorneys are allowed to track their own coursework," and it "will be looking for ways to provide our members additional opportunities to accumulate meaningful and affordable CLE credits through the programming of our sections, committees, and at our Mid-Year and Annual Meetings."
With the adoption of R. 1:42, New Jersey joins 42 other states, according to the American Bar Association, that require some form of continuing legal education.
By Mary Pat Gallagher
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