Avoiding the Common Pitfalls of MCLE Creation

By Nick Oliver

According to the State Bar of California, the purpose of Minimum Continuing Legal Education (MCLE) is to ensure active licensees “remain current regarding the law, the obligations and standards of the legal profession, and the management of their practices.”[1] Data from the State Bar indicates there are 1,294 state-approved MCLE providers.[2] A majority of lawyers practicing in California must obtain and complete 25 hours of MCLE credit per three-year compliance period. Recognizing this obligation, various legal employers, bar associations, law schools, and other entities have obtained qualifying provider status to serve the educational needs of the profession. However, some providers lack institutional knowledge and comprehension about what it actually means to host a qualifying MCLE program. MCLE credit is often marketed as a lure to get lawyers to register for programming with insufficient internal consideration about whether the program is even eligible for credit and how to calculate credit provided to attendees.

This article explains the most important rules of MCLE content-creation in California. While an interesting topic for a future article, this article will not address the specific requirements for becoming a qualified MCLE activity provider in California. Instead, we hope this article serves as a resource for early-career lawyers who seek to navigate the world of MCLE-creation to build their reputations and advance their careers.

An hour is an hour (or at least greater than 52.5 minutes)

The Rules of the State Bar are very specific about how to calculate an hour of MCLE activity.[3] MCLE credit can be applied only toward time “actually spent in an MCLE activity.”[4] If there is a break during an MCLE program, that time must be deducted from the MCLE credit awarded to attendees of a program. If the program deviates from the primary educational topic of the program to some other topic or activity that “lack(s) educational content,” that portion of the program cannot be applied toward the tabulation of MCLE credit. Finally, rounding of MCLE credit-hours must always be done to the nearest quarter of an hour, whether up or down.

Question: A presentation on an MCLE-eligible topic is scheduled to begin at 12:00 p.m. and conclude at 1:00 p.m. Due to an issue with the microphones, the presentation starts at 12:04 p.m. At 12:45 p.m. the presentation concludes, and the presenter takes questions from the audience. The presenter concludes questions at 12:54 p.m. How should the MCLE credit earned by attendees of this program be calculated?

Answer: 0.75 hours. Because of the delayed start time and early conclusion, the substantive portion of the presentation—which includes the question and answer session—only lasted 50 minutes. Therefore, since 50 minutes is closer to 0.75 hours (45 minutes) than 1.00 hour (60 minutes), Rule 2.51(D) requires that the MCLE provider round down and provide only 0.75 MCLE credit hours to attendees. For rounding purposes, the midpoint between 0.75 and 1.00 hour is 52.5 minutes. Anything below 52.5 minutes is rounded down to 0.75 hours; anything above this may be rounded up to 1.00 hour of MCLE credit.

Provide your audience with materials

The one-hour mark is important for another reason: it obligates the provider to offer written materials to attendees.[5] Substantive written materials relevant to the topic of the MCLE activity must accompany all MCLE activities lasting for one hour or more. The materials must be available to attendees either before or during the presentation, and if the materials are provided online, they must remain online for at least 30 days following the activity.[6]

Aside from the requirement to “provide substantive written materials” for activities of one hour or longer, the Rules of the State Bar do not specify the length, form, or requirements for supporting materials. In practice, supporting materials are often prepared by the presenters and include such things as presentation slides, relevant articles, and links to additional materials on the subject.

Be careful when offering specialty credit

The best-selling, yet most scarce, MCLE activities are often those that qualify for one of the three categories of specialty credit[7]: legal ethics, elimination of bias, and competence issues. For most attorneys, the State Bar requires a minimum of six hours of specialty credit per three-year compliance period, as follows:

1. At least four hours of legal ethics;
2. at least one hour dealing with the recognition and elimination of bias in the legal profession and society by reason of, but not limited to, sex, color, race, religion, ancestry, national origin, physical disability, age, or sexual orientation; and
3. at least one hour of education addressing substance abuse or other mental or physical issues that impair a licensee’s ability to perform legal services with competence.[8]

Legal Ethics:

Although “legal ethics” is not defined by rule, activities and supporting materials prepared to meet this credit requirement should focus on the California Rules of Professional Conduct, with citations to specific rules being discussed. Programming focused on business or corporate ethics, codes of ethics in other jurisdictions or professions, or ethics in general are likely not eligible for MCLE legal ethics credit because they may not be “directly relevant to licensees of the State Bar” or “have significant current professional and practical content” for California lawyers.[9]

Elimination of Bias:

For elimination of bias MCLE activities, it is important to consider whether the program maintains a nexus to the legal profession in the presentation and supporting materials and whether it focuses on one or more of the listed classifications. A presentation which merely explores the issues of bias in general would not qualify for this type of MCLE credit.

Competence Issues:

For competence issues MCLE activities, the programs often deal with topics such as addiction and substance abuse, mental health issues, and burnout among lawyers. The “competence” component of this category of specialty credit is a reference to California Rule of Processional Conduct 3-110, which prohibits members of the State Bar from rendering legal services without competence and defines competence to include having the “mental, emotional, and physical ability reasonably necessary for the performance of [legal] service.”[10]

For all three categories, the Rules of the State Bar require that the presenter of the MCLE activity “have significant professional or academic experience related to its content.”[11] Despite the allure of a high-demand program, legal professionals should not endeavor to produce MCLE content on specialty credit issues if they are not professionally qualified in these areas.

Finally, for a program to be eligible for specialty credit, MCLE providers must include information in their promotional materials indicating any areas in which specialty MCLE credit is being offered.[12] Specialty credit can only be awarded for the portion of the program actually devoted to the specialty credit topic, rounded to the nearest quarter of an hour. Therefore, if a program spends one hour discussing trusts and estates issues but only devotes 30 minutes to legal ethics issues, then attendees of the program would receive one hour of participatory MCLE credit, but they may only apply 0.5 hours toward their 4-hour legal ethics minimum requirement.

Understand the difference between participatory and self-study MCLE credit

Self-study:

MCLE is most frequently used to refer to articles prepared along with an examination—which may be offered in either open- or closed-book format—that are published online through an MCLE provider’s website.[13] The examination must be submitted by the taker to a provider, who must then return the examination with a grade or score and explanations of the correct answers. While the process can be automated rather than relying on human scorers, all components—including the scoring and explanations—must be present for the submission to qualify for self-study MCLE credit. The Rules of the State Bar do not set a minimum number of questions for an examination, but 15 to 20 questions are typical, and questions are often presented in a multiple choice or true or false format. Self-study MCLE can also include the completion of other MCLE activities, electronically or in person, for which attendance is not verified by the provider, as long as the MCLE activities were prepared within the preceding five years.[14] But note, no more than half (12.5 hours for most attorneys) of a licensee’s credit in a three-year compliance period may come from self-study.[15]

Participatory:

MCLE activities are defined as those for which the provider must verify attendance, whether presented electronically or in person.[16] In person activities may have a sign-in sheet or another type of registration that confirms attendance. Electronic activities may have a unique log-in or other identifier to track the identity of the activity’s participants.

Remember to calculate your speaking or authoring credit

Reputation-development and the satisfaction of helping other lawyers are not the only reasons to enter into the world of MCLE content-creation. Attorneys also earn MCLE credit for themselves when speaking at events that offer participatory MCLE credit or authoring written materials that qualify for self-study MCLE credit. An author or co-author of a self-study MCLE article that is accepted for publication may claim self-study MCLE credit for the time spent preparing the article if it advanced the author or co-author’s legal education and was not prepared in the ordinary course of employment or in connection with an MCLE event at which the author or co-author is speaking.[17]

Speakers at an approved participatory MCLE activity may also claim MCLE credit in accordance with the following rules:

• If the speaker is the principal speaker at an MCLE activity, and responsible for preparing and delivering a program and its materials, he or she may claim actual speaking time multiplied by four for the first time giving the presentation. For subsequent presentations on the same topic, the speaker may only claim actual speaking time.[18]

• If the speaker is a panelist at an MCLE activity that he or she has not presented before, he or she may claim MCLE credit for the scheduled individual speaking time multiplied by four, plus the actual time spent in attendance for the rest of the presentation. If a scheduled time has not been determined prior to the panel, the speaking times for the panelists may be divided equally and multiplied by four, and all panelists may still claim actual time spent for the remainder of the presentation. For subsequent appearances on panels covering the same topic without significant changes to the presentation, panelists may only claim actual speaking time.[19]

• Hosts and moderators may only claim the actual time spent in attendance at the presentation—no differently from any other attendee.[20]

Conclusion

MCLE is not only a mandatory requirement for licensees—it is also how we share knowledge, hone our skills, and advance the profession. Understanding the rules set forth in this article is the first step any new lawyer should take before sitting on a panel, drafting a self-study article, or creating a webinar to educate fellow lawyers on topics of current professional and practical import to licensees of the State Bar.

Nick Oliver is an attorney in Sacramento for the California Energy Commission. He serves as Chair of the California Young Lawyers Association and oversees CYLA’s substantial catalog of on-demand MCLE content, as well as its development of new programs and articles to serve the unique needs of California lawyers within their first eight years of practice. The views presented in this article are his own and do not represent the views of his employer or any other entity.

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[1] Rules of the State Bar, Title 2, Division 4, Rule 2.50.

[2] Provider Search, State Bar of California, https://members.calbar.ca.gov/search/cert_browse.aspx (last visited Feb. 10, 2020).

[3] See Rules of the State Bar, Title 2, Division 4, Rule 2.51(D).

[4] Id.

[5] Rules of the State Bar, Title 2, Division 4, Rule 2.52(D).

[6] Id.

[7] I use the term “specialty credit” in this article to refer to these three required types of MCLE credit. However, specialty credit as used in this article should be distinguished from MCLE credit that can be applied toward a legal specialization under California Rule of Court 9.35. The legal specialization program is beyond the scope of this article; see also Rules of the State Bar, Title 2, Division 4, Rule 2.84.

[8] Rules of the State Bar, Title 2, Division 4, Rule 2.72(A).

[9] Rules of the State Bar, Title 2, Division 4, Rule 2.52(A).

[10] California Rules of Professional Conduct, Rule 3-110.

[11] Rules of the State Bar, Title 2, Division 4, Rule 2.52(B).

[12] Rules of the State Bar, Title 2, Division 4, Rule 2.52(C).

[13] See Rules of the State Bar, Title 2, Division 4, Rule 2.83(B).

[14] Rules of the State Bar, Title 2, Division 4, Rule 2.83(A) and 2.51(G).

[15] Rules of the State Bar, Title 2, Division 4, Rule 2.72(A).

[16] Rules of the State Bar, Title 2, Division 4, Rule 2.51(F) and 2.83.

[17] Rules of the State Bar, Title 2, Division 4, Rule 2.83(C)(3).

[18] Rules of the State Bar, Title 2, Division 4, Rule 2.83(A)(2).

[19] Rules of the State Bar, Title 2, Division 4, Rule 2.83(B).

[20] Rules of the State Bar, Title 2, Division 4, Rule 2.83(C).