Gina's CLE Blog

Food for Thought...But Not for CLE?

Upon reviewing a recent program we were holding at a very nice steakhouse in Denver and reflecting on the fact that no one ever buys ME lunch, I recalled a conversation with a regulator about the rules related to the service of food during a CLE program. Unfortunately, I couldn't remember with which state's regulator I'd had the conversation!

Actually, my failing memory provided the impetus for an interesting, and perhaps overdue audit of the states' rules, regulations, and practices related to food and CLE.

With responses from 39 of the 45 states with MCLE requirements, the rules fall into three general categories:

• The state has no rules prohibiting food service or consumption
• The state limits food service related to CLE programming. In most situations, this means that the state requires the program agenda to detail a distinct time for food service/meals, separate from instruction, either before or after the substantive content is provided.
• The state does not allow credit for sessions held with meals.

I should note that the answers above also assume that the program instruction meets all other CLE requirements (topic, program materials, speaker qualifications, etc) and would otherwise be accreditable.

Of the 39 states responding, 9 states have no rules related to meals, 23 require the separation of meal service and CLE instruction, and 7 states equate food with no CLE. See the table below for specifics for each state:

States	Food and CLE
Alabama	No rules prohibiting food service or consumption.
Alaska	Meals are exempt, but if there is a substantive presentation during an extended lunch or dinner, regulator will usually reduce credits by 30 minutes for serving and eating if time not specifically included in agenda.
Arizona	No rules prohibiting food service or consumption.
Arkansas	Presentation may not be conducted during a meal. There must be a clear time distinction between eating and CLE - a specifically designated time for meal service and clearing before instruction begins.
California	No rules prohibiting food service or consumption.
Colorado	Credit may not be given for CLE when food is being served, eaten, or cleared away.
Connecticut	Non-MCLE
Delaware	Answer pending
Florida	No rules prohibiting food service or consumption.
Georgia	No rules prohibiting food service or consumption.
Hawaii	Answer pending
Idaho	Regulator grants half credit to breakfast, lunch, and dinner programs.
Illinois	If a meal is included in course time, the provider must subtract the actual time of the meal, but no less than 15 minutes (0.25 credits), to reflect time devoted to meal.
Indiana	If the time of the meal is not separate and distinct and easily identified in the agenda, the regulator may subtract a few minutes from accredited duration for serving and clearing up.
Iowa	Credit is not allowed for sessions that combine a meal and presentation. Instruction must be a separate and distinct portion of the program. The presentation must be provided in an educational environment.
Kansas	Provider must demonstrate that the meal will not intrude on presentation time. Regulator requires that time be blocked out for serving, but you may allow eating during the presentation.
Kentucky	No rules prohibiting food service or consumption.
Louisiana	Food is not allowed during a CLE presentation.
Maine	If a program is set during a luncheon, regulator does not accredit that portion of the event.
Maryland	Non-MCLE
Massachusetts	Non-MCLE
Michigan	Non-MCLE
Minnesota	Credit is not given during meals, however if the agenda breaks down time between food service and lecture the time may be approved.
Mississippi	Reg 3.1 states that "no credit given for…luncheon speakers".
Missouri	Food service must occur prior to the CLE portion of the meeting. A box lunch may be brought in and eaten, but food service cannot occur during a CLE program.
Montana	Credit is not given for luncheon speakers.
Nebraska	No rules prohibiting food service or consumption.
Nevada	Regulator will give credit if the session reads "working lunch".
New Hampshire	Answer pending
New Jersey	Food is not allowed if eating will disturb the educational experience. If food is offered, it shouldn't interfere with instruction. Food may be served prior to or after actual education.
New Mexico	If speaker is presenting while food is served, CLE credit will not be approved.
New York	Agenda must detail a distinct time for food service, separate and distinct from instruction.
North Carolina	No rules prohibiting food service or consumption.
North Dakota	No rules prohibiting food service or consumption.
Ohio	Gov. Bar X Sec 4(A)(1), CCLE Reg 406(H) - No CLE credit if a meal is served.
Oklahoma	Rule 7, Reg 3.6 - no credit given during a meal. May be able to subtract 20-30 minutes from lunch or dinner presentation and give credit for the remainder.
Oregon	Answer pending
Pennsylvania	Regulator advises providers to set aside 15 minutes or so for gathering food, set up, serving, etc. There is no prohibition against a "working lunch".
Rhode Island	Answer pending
South Carolina	Credit is not given for lunch presentations. If lunch provided and then speaker, partial credit may be awarded. If food provided during a break, snacks during lecture are acceptable.
South Dakota	Non-MCLE
Tennessee	Credit is not allowed for sessions that are held with meals.
Texas	No rules prohibiting food service or consumption. If full day agenda without designation of portion devoted to meals, regulator may remove some time (0.5 hour or so) for set up, break, etc.
Utah	No rules prohibiting food service or consumption. Must have a timed break in agenda to allow attorneys to get their food and be seated prior to instruction.
Vermont	Reg 2(b): "Credit will not be given for speeches presented at and attendance at luncheons and banquets". Regulator interprets this as food = no CLE.
Virginia	Non-approved time must be allowed and detailed in agenda for service of meals.
Washington	Start and end time of presentation must be listed separately from meal time. The presentation cannot begin while meal is being served. Cannot have any distraction (besides eating).
Washington DC	Non-MCLE
West Virginia	Meals must be separate from the CLE presentation. Some type of break must be provided for serving and eating of meals, or eat prior to or after the presentation.
Wisconsin	Answer pending
Wyoming	CLE credit may be allowed at the discretion of the Board.

In practice, we are now reviewing all of the CLE programs we provide to ensure that the agenda includes a distinct and separate time for food, either prior to or after the instruction. In this way, we will be maximizing the opportunity to offer programs for credit in the majority of the states.

California MCLE to Audit More Attorneys

In a letter to California Local Bar Associations dated April 13, 2012, Jon Streeter, President of the State Bar of California, announced major changes in the audit process that will affect California attorneys, and likely the providers who issue credits to that audience. From his letter:

I am writing to alert you that the State Bar is taking a more aggressive approach to auditing MCLE compliance than it has historically. All California lawyers need to be aware of this change in the Bar's MCLE auditing process.

The result of the State Bar's recent 2011 MCLE audit of one percent or 635 lawyers has confirmed the need for increased auditing. Of the 635 audited attorneys, 539 provided the necessary documentation showing full compliance. Of the remaining 96 attorneys, five have been suspended due to their inability to show any compliance. Most of the remaining 91 attorneys had minor reporting deficiencies and received a cautionary letter from our MCLE compliance group about future compliance. Approximately 25 of the 91 are being referred to the Office to Chief Trial Counsel for disciplinary action. Using simple math, we see that 15% of this reporting group were not in compliance.

This result is troubling and reaffirms the action being taken by the State Bar. In 2012, California attorneys can expect that five percent or roughly 3,000-4,000 lawyers to be audited. In 2013, the goal is to audit 10% which translates to 7,000-8,000 lawyers. Letters requesting proof of compliance for 2012 will be mailed in June.

The message is clear. California lawyers must fulfill and accurately document and report their MCLE requirements. No California attorney should be surprised if their compliance certificate is audited. For more information regarding MCLE requirements and reporting, visit the State Bar's MCLE web page.

The State Bar is increasing audits five-fold in 2012 and ten-fold by 2013.

So what does this mean for attorneys? More accurate and inclusive record keeping should become the norm in case of audit. The State Bar requires California attorneys who are audited to provide:

• The certificates of attendance given to attorneys by providers;
• The record of self-study activities including, as appropriate, the title, provider, time spent in the activity, subject matter of the activity, and the date engaged in activity; and
• Proof of exempt status, if applicable.

Attorneys must maintain their own records, listed above, for at least one year from the time compliance is reported.

And what does this mean for us as providers? We, too, must be more diligent in our tracking and record keeping. Each attendee must be given a Certificate of Attendance for his or her own records, and the proof of attendance upon which this issuance is based must be maintained by the provider for at least four years. If an attendee is audited, the provider must be able to produce a duplicate record that reflects the attorney's attendance.

The Bar plans to send out letters for this year's audit in July. Those selected will need to fill out an online MCLE compliance log and submit actual Certificates of Attendance, either by mail or email.

Comment Period Open for Proposed Amendments to Indiana CLE Rules

The Indiana Supreme Court Committee on Rules of Practice and Procedure for Public Comment is inviting public comment on proposed rule amendments. These amendments were proposed by the Indiana Commission for Continuing Legal Eduction and have been published for comment at http://www.in.gov/judiciary/3784.htm.

According to Julia Orzeske, Executive Director of the Indiana Commission for CLE:

"These amendments clarify how and when attorneys and judges can challenge CLE decisions and impose deadlines on attorneys, judges, sponsor, and mediators when applying for approval of courses or reporting attendance. Additionally, the amendments impose an application fee for courses presented by non-approved sponsors and late processing fees for tardy submissions of course applications and attendance." [email to sponsors, 3/30/2012]

The comment period will be open until May 9, 2012. Comments should be submitted, in writing, to:

Lilia G. Judson, Executive Director

Indiana Supreme Court

Division of State Court Administration

30 South Meridian Street, Suite 500

Indianapolis, IN 46204

or via email to: rulescomments@courts.in.gov

 

 

No Mandatory CLE in Connecticut for at Least One More Year

Last Thursday, the Connecticut Superior Court Rules Committee heard testimony from several attorneys, including CBA President-elect Barry Hawkins and New Haven County Bar President Irene Jacobs, regarding a proposal requiring lawyers to complete at least 36 hours of CLE every three years. The proposal, endorsed by the CBA's House of Delegates, has created a deep division within the bar.

Testimony included information from Jacobs (who spoke against the proposal) that New Jersey, the most recent state to adopt MCLE requirements, found that the costs of implementing the program were higher than anticipated. The costs were not covered by the annual $4 per lawyer assessment and the bar borrowed money from the New Jersey Judicial Branch to fund the start-up.

Stating its own concerns about the costs of the program, the Rules Committee then voted to table the proposal. The move essentially puts the mandatory requirement on hold for at least a year.

The Rules Committee has also decided to ask Chief Justice Chase T. Rogers to form a committee of judges to evaluate the administrative challenges and other burdens that may be born if a mandatory requirement is implemented.

Good News - Most Attorneys ARE Meeting their MCLE Requirements!

I recently received an inquiry from a law firm CLE coordinator looking for any statistics available related to the rate of attorneys who comply with the MCLE regulations in a timely manner. After searching through my reference materials and sources, I could find no reports of this number.

As I, too, was curious and though that this would be interesting information to have, I surveyed my contacts at the state regulatory authorities to find out if they were tracking this data, and what were their results.

I asked the regulators:

• What percentage of attorneys are fully compliant with the rules (meet the credit and date requirement),
• How many meet the requirement within the late period, and
• How many are non-compliant (do not meet the requirement)? – The penalty is usually administrative suspension to practice law.

I quickly received responses from about half of the regulators, and found out that many state regulators do not have easy access to this information. There were also four states (Alaska, California, Colorado, and Illinois) where the information is confidential by statute. Of the remaining states, the overwhelming majority show that attorneys are relatively good at complying – just not always on time.

On average:

• 89.8% of attorneys are compliant with the regulations by the end of compliance period. This number is significantly lower when there is a “grace-period” offered (no late fees assessed) – only 73% of attorneys are compliant in states with this grace period available.
• Of those attorneys who are in the late period, the majority of these do come into compliance. On average the states have a 0.9% non-compliance rate – these are attorneys who are suspended due to non-compliance. Generally they are administratively suspended from the practice of law and can remedy and pay a reinstatement fee to become active again.

I will let you know if the numbers change significantly with more responses from the states, but I feel fairly confident that these numbers will hold true across all of the MCLE jurisdictions as they’ve been fairly consistent across the data I’ve received to date.

Thank you to Michea for prompting me to ask the questions!