Opinion
85-302
Delivered February 5, 1990
On December 18, 1989, we entered a per curiam order allowing interested parties until March 1, 1990, to comment upon rules and regulations proposed for the Arkansas Continuing Legal Education Program.
Some regulatory issues must be resolved, temporarily at least, before March 1. Those issues are: (1) Regulation 3.01 — Enhanced Credit for Speakers; (2) Regulation 4.04(1) — Credit for Bar Examiners; (3) Regulation 4.04(2) — Authorship of Law Articles; and, (4) Regulation 4.04(3) — Attendance at Law School Courses.
According to our per curiam order of March 6, 1989, the first reporting period ends June 30, 1990. If we do not resolve these issues now, many attorneys and judges will be uncertain of the number of CLE hours they have accumulated toward the end of the first reporting period.
We adopt, with modifications, regulations 3.01 and 4.04 which were proposed on December 14, 1989, by the Arkansas Continuing Legal Education Board as part of the comprehensive regulations.
After the period set aside for comments from the bench and bar, we will enter a final order on the Board's motion for adoption of the comprehensive regulations. Those we adopt today may be altered when they are reconsidered in the light of the other regulations and the comments we receive.
The following interim regulations are hereby adopted:
3.01 ENHANCED CREDIT
(1) SOLO SPEAKERS
Anyone who presents a speech or program at an approved CLE course shall be allowed four (4) hours credit for each hour of the initial presentation and two (2) hours credit for each hour of each subsequent presentation of the same material.
(2) PANEL DISCUSSIONS
A participant in a panel presentation shall receive two (2) hours for each one (1) hour of the entire panel presentation in which he or she participates directly, unless the participant shall have prepared for distribution to the audience written materials supporting his or her portion of the panel presentation, in which event three (3) hours credit shall be given for every one (1) hour of the entire panel presentation in which he or she participates directly.
(3) QUESTION AND ANSWER SESSIONS
Question and answer sessions following individual or panel presentations shall be counted as part of the presentation time for which credit is to be given.
(4) WRITTEN MATERIALS
To serve as a basis upon which credit for an individual or panel presentation is given, accompanying written materials must comply with Rule 4 (c)(3).
4.04 APPROVED CLE ACTIVITIES
(1) BAR EXAMINERS
Credit may be earned through service as a bar examiner in Arkansas. Six (6) hours of credit will be awarded for the preparation and grading of each bar examination administered during a given year. No more than twelve (12) hours of credit can be awarded in any year for bar examination preparation and grading.
(2) AUTHORSHIP OF LAW ARTICLES AND BOOKS
In accordance with objective standards to be developed and applied by the Board, up to twelve (12) hours of credit may be earned through the authorship of a law related article published by an American Bar Association accredited law school, a state bar journal, an official publication of the American Bar Association, or through authorship of a published book on legal matters. Any attorney may petition the Board for credit for the authorship of an article or book. Entitlement to publication credit will accrue as of the date of documented acceptance of the article by the publisher.
(3) LAW SCHOOL COURSES
Credit may be earned through part-time teaching, formal enrollment for credit, or official audit and attendance at a course offered by a law school accredited by the American Bar Association. Twelve (12) credit hours will be awarded for each academic credit hour taught, officially audited, or successfully completed, provided the applicant certifies attendance of at least seventy-five percent (75%) of the class sessions. For the purpose of this regulation, "part-time teaching" is defined as teaching one course which awards four or fewer hours of academic credit.
HICKMAN, J., observing.
GLAZE, J., not participating.
DARRELL HICKMAN, Justice, observing. This is not really a dissent. I have already dissented to the Mandatory Legal Education Program. In Re: Bar of Arkansas Membership Dues, 293 Ark. 622, 739 S.W.2d LI (1987) (Hickman, J. dissenting); In Re: Arkansas Bar Association Rules and Regulations for Mandatory Continuing Legal Education, 298 Ark. 638, 766 S.W.2d 415 (1989).
The court approved the Bar's request, set up a committee, hired a director and it runs itself. Actually, the Arkansas Bar Association, the C.L.E. Institute, and the Arkansas Trial Lawyers Association provide the overwhelming bulk of the programs. Lawyers must attend these seminars to stay qualified to practice law.
This has little or no effect on me personally, and I would remain silent except for the fact that no other court member seems to care what happens, and what is happening affects over 5,000 lawyers.
These remarks are really for the benefit of those free-thinking, fire-eating, independent lawyers who share my lack of enthusiasm for this nonsense — mandatory legal education. Short of a miracle, we're stuck with it.
Now, one of the first things a good bureaucrat thinks of is to change the name of the bureaucracy. If it can veil the purpose of the organization, fine; even better if it is deceptive. Our latest bureaucracy, the mandatory legal education program, did that right off by renaming itself the Minimum Continuing Legal Education Program. That way maybe the lawyers would not know it was required, and they would not realize that if they didn't abide by the rules they could lose their law licenses. It makes it sound like a good thing too, this minimum continuing legal education. You cannot be against that sort of thing.
The next thing a good bureaucrat will do is take care of the big shots. Big shots will not tolerate treatment like everybody else. Unless they are given special treatment, there will be Ned to pay. Heads will roll. A bureaucrat picks up on this early. So before we have even considered the permanent rules on this matter, our bureaucracy has requested special treatment immediately for some folks. It sounds all right in some respects. Perhaps our law examiners should get credit for preparing law examinations, but a lot of others are equally deserving. Where does it stop? But the special treatment in this case is really for the speakers and lecturers selected by the promoters to reeducate the Bar. These folks can get their requirements merely by talking to the ordinary lawyers. Now you take your ordinary small town lawyer who might be selected to give a lecture on examining abstracts. (Actually the title companies are putting these people out of business.) He ought to get four hours credit for appearing before a group of lawyers and telling them the real dope on examining abstracts. It is not your ordinary nickel and dime legal business. It might look like it, but it's not. It can get you in serious trouble if you don't know what you're doing. Now, I don't expect any small town lawyers to be invited to do this, but I just use it as an example. More than likely, it will be some expert; a judge, or a law professor or a governor or senator taking his or her valuable time to tell us about something we are really not interested in. These folks deserve special credit because it would be unseemly for them to endure 12 hours of bone-numbing lectures that your ordinary lawyer needs to suffer through to keep a license. Some are more equal than others. Any bureaucrat that fails to recognize this will find himself extinct.
So, I'm glad to see that our promoters of this idea were quick to catch onto this principle. There is another thing a bureaucrat learns early and that is to stomp the little people. These people have to learn their place — especially those who might expose the bureaucracy to ridicule. No one except those under the strict guidance and control of bureaucrats should be allowed to do anything. Any spontaneous effort to actually accomplish the goal of the agency must be squashed. Our people did that right quick and deserve credit for putting out a brush fire that could have become a conflagration.
This is what happened. A group of Pulaski County lawyers have for years been meeting to discuss and debate the latest court decisions by Arkansas and the federal courts that affect them. It is a voluntary organization and experienced practicing lawyers volunteer to present these decisions to the group for discussion. This group has been doing what we want done — staying current on the law. Now this group applied to our bureaucracy so that those who attend this little seminar might get some credit towards their mandatory legal education requirements. To the credit of our people they squelched this idea right quick. Good ideas are anathema to bureaucrats. First of all, it was feared such study groups might pop up all over Arkansas and that would mean the lawyers might actually educate themselves. Also, it would not cost anything. And the location is not right. The lawyers wouldn't have to go to a convention center or some exotic place and spend a lot of money. They could get their hours in by just going down the street. We can't have that!
But worse yet, the lawyers might not attend the programs of the Bar, the ATLA or CLE Institute. These organizations might have to cut back on their expensive charges for this program. They might have to offer better promotions for membership.
My brethren have not decided yet whether to go along with our board in ignoring this study group, but you can see right off that if such a thing were to spring up all over the state, this minimum Continuing Legal Education Program could go right down the drain.
Now I'm not so naive to believe that some people are not going to get special treatment. But we ought to consider the merits of a program that would help the promoters who select those speakers who happen to be boring, ill-prepared, or downright ignorant. The promoters get to select the speakers, but the lawyers have to listen to them. Maybe we ought to let the lawyers decide if a speaker deserves extra credit — after the speech. We could have the speakers graded, either pass or fail. If they pass, give them the extra credit. But if they fail, make them endure six hours of lectures in addition to the minimum requirements. Wouldn't that be fair? I expect the performance of the participants would be kept at a fairly high level. I originally thought a giant gong ought to be available at these lectures. That way the people could dispatch a speaker right on the spot and lawyers could get on with their education and not have to suffer through an entire hour unnecessarily. But we would have to have quite a few substitute speakers on hand with this idea and I doubt the court would approve a big enough gong to get the job done. Besides it's not dignified. So I'll stay with my first recommendation.
I would not want to close without mentioning the cost of this program. It has not been cheap. In fact our program, like any good government program, exceeded its budget the first year ($114,000). No telling how much has been spent on it through our private legal organizations. Of Course, we should not really concern ourselves because the taxpayers will pick up most of the tab for this program anyway. It's all tax deductible and it creates jobs. Of course the judges get theirs paid for directly, as I expect most public employees do.
I'll try to keep you informed as we progress on this project.
Happy trails (trials) to all you counselors out there, and may all your camels have two humps.