As many California attorneys are aware, now is the time for completion of our MCLE requirements as we are turning in our State Bar dues and certifying our MCLE compliance. Many are also aware that the State Bar is auditing attorneys to confirm compliance. One of those audited was the subject of a recent opinion from the Review Department of the State Bar Court, which issued a public reproval of the attorney involved for negligently misrepresenting her MCLE compliance. The unpublished opinion indicates that the attorney involved reported she had fully complied when in fact she had not taken any courses during the relevant reporting period. Charged with committing an act of moral turpitude, the attorney indicated that she had mistakenly recalled that she had completed the courses, but did not check and did not maintain any records. The attorney accepted responsibility for her mistake and revised the way she tracks her MCLE hours. What is the appropriate discipline in such a situation, particularly where the lawyer has a long unblemished legal career? The positions of the players involved in this decision reflect conflicting views.
After the hearing judge issued a recommendation of stayed suspension and probation, the Office of Chief Trial Counsel appealed seeking a 30 day actual suspension. On review the court determined that a reproval sufficed given that the attorney posed no threat to the public and taking all other relevant factors into consideration. The majority did find that the attorney’s failure to report her MCLE compliance accurately was an act of moral turpitude by gross negligence, although without intentional misrepresentation. The dissent disagreed that the attorney’s gross negligence, in the absence of any misrepresentation, constituted an act of moral turpitude. The dissent would have dismissed the matter stating, “To turn this matter into a discipline case, and worse yet, a case of moral turpitude, is a disservice to the attorney discipline system.”
The opinion reminds California lawyers that it is our responsibility to complete our required MCLE courses, and to maintain records of our MCLE compliance. You are invited to take the free MCLE course on Legal Ethics and Technology at Buckner Legal Education, here.