Posted: July 30, 2015
Mandatory Continuing Legal Education Rules
The following proposals address changes to the MCLE rules. The most substantive proposed change allows lawyers to receive up to six hours of live continuing legal education credit for attending live, interactive webcasts that are broadcast from a Utah state courthouse to a Utah state courthouse or from the Law and Justice Center to a Utah state courthouse. The proposals also address the requirements for active Bar members living outside of Utah and practicing in other jurisdictions. The majority of the changes correct grammar and inconsistencies with other Bar rules, as well as provide clarification.
USB 14-0401. Purpose. Amend.
USB 14-0402. Definitions. Amend.
USB 14-0403. Establishment and Membership of Board. Amend.
USB 14-0404. Active status lawyers: MCLE, NLCLE and admission on motion requirements. Amend.
USB 14-0405. MCLE requirements for lawyers on inactive status. Amend.
USB 14-0406. MCLE requirements for lawyers on active military duty. Amend.
USB 14-0407. MCLE requirements for lawyers on active emeritus status. Amend.
USB 14-0408. Credit hour defined; application for approval. Amend.
USB 14-0409. Self-study categories of accredited MCLE defined. Amend.
USB 14-0410. Accreditation of MCLE; undue hardship and special accreditation. Amend.
USB 14-0411. Board accreditation of non-approved sponsor courses. Amend.
USB 14-0412. Presumptively approved sponsors; presumptive MCLE accreditation. Amend.
USB 14-0413. MCLE credit for qualified audio and video presentations; computer interactive telephonic programs; writing; lecturing; teaching; live attendance. Amend.
USB 14-0414. Certificate of compliance; filing, late, and reinstatement fees; suspension; reinstatement. Amend.
USB 14-0415. Failure to satisfy MCLE requirements; notice; appeal procedures; reinstatement; waivers and extensions; deferrals. Amend.
USB 14-0416. Lawyers on active status not practicing law; certificate of exemption. Amend.
USB 14-0417. Miscellaneous fees and expenses. Amend.
Some of the proposed rule amendments, including but not limited to those in Rule 14-403, change “shall” to “are.” This moves away from being a prescriptive rule and towards being a descriptive explanation.
For example, the phrase “all of whom shall be lawyers” requires that all members be lawyers. The proposed phrase “all of whom are lawyers” merely describes the current state of membership. The latter construction fails to state a rule to be followed.
Similarly, the phrase “The Board shall consist of 15 members” requires that 15 members be appointed. The new phrase “The Board consists of 15 members” describes the currently existing Board without explicitly stating that the Board must always have 15 members.
Although the intent behind these rule changes is probably not to actually change the substance of the rules, it is a canon of statutory construction that any “amendment is intended to change existing legal rights.” Madsen v. Borthick, 769 P.2d 245, 251-52 (Utah 1988).
I urge the Judicial Council not to engage in change for change’s sake.
I am glad to see the new rule about broadcasts from courthouse to courthouse counting as live attendance. In our rural areas of Southwestern and Southeastern Utah, most bar-sponsored CLE is held in Salt Lake, which is impractical and expensive. It many times feels like much of the “member benefits” my bar dues pay for, in relation to CLE mostly benefit the more urban areas, this will bring these opportunities to the rural areas. However, please consider removing the cap restriction of 6 hours, or significantly enlarging it.