Opinion
85-302
Delivered March 6, 1989
On December 5, 1985, pursuant to Amendment 28 of the Constitution of the State of Arkansas, the Arkansas Bar Association filed a petition asking this Court to adopt a mandatory continuing legal education program for the Bar of Arkansas. By Per Curiam orders of December 23, 1985, and March 24, 1986, we sought and received comment. Subsequently, by Per Curiam order of May 30, 1986, this Court approved the concept of mandatory continuing legal education. However, we concluded it would be inadvisable to implement such a program pending development of adequate administrative controls.
On November 23, 1987, we issued a Per Curiam order, with a dissent from Justice Hickman, wherein bar dues were increased to fund an office to administer continuing legal education, specialization, and such other matters as the Court may direct.
We note that the Bar of Arkansas, as represented by the Arkansas Bar Association, the Arkansas Trial Lawyers Association, the Arkansas Judicial Council, Inc., and others who filed comments, is generally supportive of the implementation of a minimum continuing legal education program for Arkansas. It is evident that other states are moving in this direction in that, as of this date, thirty-two states have adopted such programs. On June 20, 1988, we appointed Christopher Thomas as Director of the Office of Professional Programs. His mandate was to develop, implement, and administer a continuing legal education program, among other things.
On December 5, 1988, we appointed the Arkansas Continuing Legal Education Board for the purpose of reviewing and commenting upon proposed rules that had been filed on September 23, 1988, by the Director of Professional Programs. The Board's supplemental report and revised rules were filed with this Court on January 27, 1989. We have reviewed the revised rules as proposed by the Arkansas Continuing Legal Education Board. We have also reviewed the record of these proceedings. We find the rules as proposed by the Board to be, for the most part, acceptable. Nonetheless, we have concluded that material changes are appropriate.
In particular, we have eliminated most classes of exemptions, altered the procedure for requesting inactive status, added new provisions for participation by out of state attorneys, added a provision to allow attorneys and judges to carry forward excess credits to the next reporting period, adopted 60 minutes as the basis for calculating an hour of CLE credit, and made other comparatively minor changes. All of the revisions appear in the Arkansas Rules for Minimum Continuing Legal Education which are attached to this Order.
We hereby adopt the attached Arkansas Rules for Minimum Continuing Legal Education. According to those rules, attorneys may begin acquiring credit for continuing legal education programs or activities beginning March 1, 1989, provided such programs are approved by these rules or by the Arkansas Continuing Legal Education Board. The Board is directed to promulgate regulations, at the earliest opportunity, to further the efficient administration of these rules.
Finally, the Board is to begin prompt implementation and administration of these rules pursuant to Rule 1.(E) of the Arkansas Rules for Minimum Continuing Legal Education.
ARKANSAS RULES FOR MINIMUM CONTINUING LEGAL EDUCATION
RULE 1.
CONTINUING LEGAL EDUCATION BOARD
1.(A) There is hereby established the Arkansas Continuing Legal Education Board (hereafter referred to as the Board). The Board shall be composed of nine voting members, appointed by the Arkansas Supreme Court, all of whom are resident members of the Bar of Arkansas. In addition, the President of the Arkansas Institute for Continuing Legal Education, and the Dean of each Arkansas law school accredited by the American Bar Association shall be ex-officio members, without vote.
1.(B) There shall be at least one Board member from each of the six Arkansas Court of Appeals districts. The initial Board shall draw terms so that three members will serve a one year term, three will serve a two year term, and three will serve a three year term.
1.(C) All subsequent appointments shall be made by the Arkansas Supreme Court for terms of three years. Board members may be reappointed, but may serve no more than two terms of three years. The Arkansas Supreme Court shall fill all vacancies, with the appointee to serve the remaining term, for such position, subject to reappointment in accord with this paragraph. Any Board member whose term expires shall continue in office until his successor is appointed and qualified.
1.(D) The Board shall, annually, by majority vote, elect a Chairman from among its voting members. The Director of Professional Programs for the Arkansas Supreme Court shall serve as Secretary, without a vote. Board members shall be entitled to reasonable reimbursement for expenses.
1.(E) The Board shall have the following duties and responsibilities:
(1) Exercise general supervisory authority over these rules, to include the imposition of sanctions for noncompliance with these rules, as well as the implementation and administration of these rules;
(2) Adopt regulations consistent with these rules, to be submitted to the Arkansas Supreme Court for approval prior to their implementation;
(3) All matters concerning sanctions for noncompliance with these rules shall be the duty and responsibility of the Board, however, the Board may appoint committees as may be necessary to efficiently administer these rules.
(4) In cases of extreme hardship due to mental or physical disability, the Board may approve a substitute plan by which individuals may meet the requirements of these rules; and
(5) Such other specific grants of authority as may be set out in these rules.
1.(F) A majority of all voting Board members shall constitute a quorum.
RULE 2.
SCOPE
2.(A) Except as noted elsewhere in Rule 2, these rules shall apply to every member of the Bar of Arkansas, including all levels of the State and Federal Judiciary, and all attorneys who may be suspended during any reporting period due to nonpayment of license fee or action by the Supreme Court Committee on Professional Conduct. When used in the course of these rules, the word attorney shall include judges.
2.(B) Attorneys who are members of the Bar of Arkansas, but reside outside this State, are required to meet the minimum CLE requirements of their resident state. Such attorneys shall complete an annual certification form to that effect, which will be filed with the Arkansas Supreme Court Office of Professional Programs. Such certifications shall be subject to verification through the agency which administers the CLE program for such resident state. In the event an attorney is a member of the Bar of Arkansas, yet resides in a state where there is no continuing legal education requirement, such attorneys shall be annually required to file with the Arkansas Supreme Court Office of Professional Programs a certification of that fact. Further, in the event an attorney returns to the state of Arkansas from a state wherein there has been no continuing legal education requirement, that attorney shall be required, during the first reporting period after his return, to acquire thirty-six (36) hours of accredited continuing legal education. Twelve (12) of those hours shall be a basic skills course or Bar Examination Review Course as approved by the Board.
2.(C) (1) At any time during a reporting period, an attorney, with the exception of sitting judges, may take inactive status pursuant to these rules. Inactive status, for the purpose of these rules only, means that an attorney, subsequent to declaration of inactive status, will not engage in the practice of law during the remainder of that reporting period. Promptly after implementation of these rules, the Arkansas Supreme Court Office of Professional Programs will provide an opportunity for attorneys to declare as an inactive attorney. Attorneys may also, in writing, advise the Arkansas Supreme Court Office of Professional Programs that they wish to take inactive status during any reporting period. By taking such inactive status, the attorney shall be exempt from the minimum educational requirement of Rule 3 for that reporting period, and subsequent reporting periods, if he chooses to annually certify his inactive status pursuant to Rule 5.(E).
(2) If, during any reporting period, an attorney who has previously declared himself inactive returns to the practice of law, he must immediately so advise the Arkansas Supreme Court Office of Professional Programs. Such attorney, who is returning to active status, shall be subject to a reinstatement fee, to be set by the Board, in an amount not to exceed $250.00. The attorney will receive no educational credits for courses he may take before the reinstatement fee has been paid. Provided that the attorney returning to active practice notifies the Office of Professional Programs and pays the reinstatement fee, then qualified continuing educational credits may be applied pursuant to paragraph 2.(C)(3) below.
(3) Such attorneys shall be required to obtain thirty-six hours of qualified continuing legal education between the date of his return to active status (which is the date the reinstatement fee is received by the Office of Professional Programs) and the end of the next succeeding reporting period. Twelve (12) of those hours will be a basic skills course, or Bar Examination review course, either of which must be approved by the Board.
RULE 3.
MINIMUM EDUCATIONAL REQUIREMENTS
3.(A) Every member of the Bar of Arkansas, to whom these rules apply, shall complete 12 hours of approved continuing legal education during each reporting period as defined by Rule 5.(A) below. In addition, an attorney or judge may carry over accredited hours in accord with the provisions of Rule 5.(A).
3.(B) This minimum requirement must be met through courses conducted by sponsors approved by the Board; or individual courses that have been approved by the Board; or such other programs, courses, or other educational materials that the Board may approve pursuant to Rule 4.
3.(C) An hour of continuing legal education shall include at least sixty minutes of instruction, exclusive of meals, introductions, or other non-educational activity.
3.(D) The Board is authorized and encouraged to consider the requirement of particular course content, such as professional or judicial ethics, as part of the minimum educational requirement. Further, the Board is authorized and encouraged to consider the creation of a program whereby attorneys who achieve substantial education in excess of the minimum requirement might be appropriately recognized.
RULE 4.
ACCREDITATION
4.(A) The Board shall be the exclusive authority for accreditation of acceptable continuing legal education sponsors or programs. The Board, through its Secretary, will regularly report to the Arkansas Supreme Court on actions the Board may have taken in connection with accreditation requests of sponsors, said report to provide a brief individual explanation of each action taken.
4.(B) Approval of Accredited Sponsors:
(1) An organization, or individual, may seek Board designation as an accredited sponsor;
(2) Such a request must be accompanied by evidence the sponsor has conducted, during the three years preceding application, at least three courses that substantially comply with the individual course requirements of Rule 4.(C);
(3) Subsequent to approval as an accredited sponsor, courses offered by that sponsor may be automatically approved, provided that such courses meet the requirements of Rule 4.(C) and the sponsor so states in connection with each course;
(4) Likewise, sponsors accredited by another state or a national continuing legal education accrediting body may be automatically approved, provided that such courses meet the requirements of Rule 4.(C) and the sponsor so states in connection with each individual course;
(5) Accredited sponsors must abide by all reasonable requests for information or course materials from the Board, or its Secretary, and the Board reserves the right to withdraw sponsor accreditation for failure to meet the requirements of these rules.
4.(C) Individual course or activity approval: The Board may, upon application, approve continuing legal education courses or activities provided such courses meet the following standards:
(1) The course must contribute directly to professional competence of attorneys and judges, or to their education with respect to professional or ethical obligations;
(2) Course presenters must have the necessary experience or academic skills to conduct the course effectively;
(3) Prior to, or during the course, each attendee must be provided with written course materials of a quality and quantity which indicate that adequate time has been devoted to their preparation and that they will be of value to the attendees in the course of their practice;
(4) The course must be presented in a suitable setting, which provides attendees with adequate writing surfaces;
(5) During activities presented by means of videotape, audiotape, or other such systems, there must be an opportunity to ask questions of course faculty or a qualified commentator;
(6) The sponsor must encourage participation by attorneys as planners, authors, panelists, or lecturers;
(7) The sponsor must make available to the Board, or its Secretary, upon request, information concerning the course, which might include a list of attendees or individual affidavits signed by attendees, the course brochure, a description of the method or manner of presentation, and a set of all written materials pertinent to the course; and
(8) The course must be subject to evaluation, before, during, and after presentation.
4.(D) The Board is authorized and encouraged to grant approval to all sources of continuing legal education which meet the standards of Rule 4.(C), including publication of law related articles in legal journals; preparation of bar examination materials; preparation for, and conduct of, approved continuing legal education courses; participation in regularly scheduled courses conducted by American Bar Association accredited law schools; and "In House" educational programs conducted by law firms or other law related entities. The Board shall also be authorized to determine the amount of approved hours such activities are worth and may limit the number of such hours that may be applied to the minimum requirement.
4.(E) Provisional Accreditation: Subject to the requirements of Rule 4.(B), the Secretary is authorized to provisionally accredit the following sponsors for courses or activities conducted after March 1, 1989:
(1) Arkansas Institute for Continuing Legal Education;
(2) Arkansas Bar Association;
(3) Arkansas Trial Lawyers Association;
(4) American Bar Association Accredited Law Schools;
(5) American Bar Association and its Sections;
(6) American Law Institute;
(7) American Judicature Society;
(8) Arkansas Judicial Department;
(9) Association of Trial Lawyers of America;
(10) National Judicial College;
(11) American Academy of Judicial Education;
(12) Practicing Law Institute;
(13) Arkansas Prosecuting Attorney's Association; and
(14) Arkansas Legal Services Support Center.
This provisional accreditation may be continued in the discretion of the Board.
4.(F) It is presumed that sponsor accreditation, or individual program accreditation, will be sought well in advance of the event. However, the Board may accredit a sponsor or individual program after the event.
RULE 5.
REPORTING
5.(A) Subject to exceptions noted in Rules 5.(B) and 5.(F), credit for approved continuing legal education hours will be given for courses or activities conducted from July 1 through June 30 of each year, and for the purposes of these rules, this period of time shall be known as the "reporting period". If an attorney or a judge acquires, during such reporting period, approved continuing legal education in excess of twelve (12) hours, the excess credit may be carried forward and applied to the educational requirement for the succeeding reporting period only.
5.(B) Provision for initial reporting period: The initial reporting period will end June 30, 1990. During implementation of this new program, courses or activities which are approved by the Board, or these rules, and which are conducted subsequent to March 1, 1989, may be applied to the reporting period ending June 30, 1990.
5.(C) Sponsors may be required to report attendance to the Board or its Secretary. Such reports may be required promptly after completion of each program or activity. Attorneys may also report approved activities using an affidavit approved by the Board.
5.(D) The Board, through its Secretary, shall maintain current records of CLE attendance for each attorney to whom these rules apply. Pursuant to Board regulation, they shall be made available to such attorneys.
5.(E) On or before ten days after the conclusion of a reporting period, the Board, through its Secretary, shall send by regular mail an affidavit to each affected attorney. The affidavit shall require that the attorney confirm compliance with these rules and confirm the active or inactive status of the attorney. The attorney shall sign the affidavit and file same with the Board on or before July 31 of each year.
5.(F) In the event an attorney shall fail to obtain the required hours during a reporting period, he shall, nonetheless, file the affidavit by July 31 and accompany the affidavit with a plan for curing any deficiency on or before the following October 31st. The deficiency plan shall be deemed accepted by the Board unless the Board advises the attorney otherwise within thirty days after receipt of the proposed deficiency plan. Subsequently, the attorney shall, by affidavit filed on or before November 15, confirm completion of the deficiency plan. Courses or activities taken pursuant to the deficiency plan shall apply only to the minimum educational requirement for the previous reporting period.
5.(G) In the event an attorney has completed the minimum educational requirement for a reporting period, yet fails to file the affidavit by July 31, the Board may authorize, by appropriate regulation, late filing of such affidavits.
5.(H) Administration of this program is complicated by attorneys who file deficiency plans or file affidavits after the due date. Accordingly, the Board is authorized to assess costs against delinquent attorneys in the form of a reasonable fee for filing late or filing a deficiency plan.
5.(I) Newly admitted attorneys shall be subject to the twelve hour minimum requirement during the reporting period that follows the reporting period in which they are admitted.
5.(J) All filings pursuant to Rule 5 will be made with the Arkansas Supreme Court Office of Professional Programs, unless the Board directs otherwise. In addition, all such filings that require the signature of an attorney shall be subject to the requirements of Rule 8.4 of the Model Rules of Professional Conduct for Lawyers or its successor rule.
RULE 6.
NONCOMPLIANCE AND SANCTIONS
6.(A) If an attorney to whom these rules apply fails to timely file the affidavit, or if necessary, a deficiency plan, as required by Rules 5.(E) or 5.(F), he shall not be in compliance with these rules.
6.(B) Within thirty days after July 31 of each year, or thirty days after November 15 in instances where a deficiency plan has been filed, the Board, through its Secretary, shall serve a notice of noncompliance on such attorneys. The notice shall be sent by certified mail, deliver to addressee only, at the address the attorney maintains with the office of the Supreme Court Clerk.
6.(C) The notice shall state the nature of the alleged noncompliance and advise the attorney that he must, within fifteen days of receipt of the notice, provide written evidence that he is in compliance, correct the noncompliance, or request a hearing before the Board.
6.(D) If, within the allotted time, the noncompliance is not corrected, or a hearing is not requested, the Board may suspend the license of the attorney subject to reinstatement pursuant to paragraph 6.(I) below.
6.(E) If a hearing is requested, it shall be promptly conducted before a quorum of the Board. The attorney requesting the hearing shall be given ten days notice thereof.
6.(F) Hearing procedure:
(1) The Board, in the performance of its responsibilities under these rules, shall have the authority to request issuance of summons or subpoena from the office of the Supreme Court Clerk, and the Clerk may issue same. Such requests shall be signed by the Chairman of the Board, or its Secretary.
(2) Witnesses may be sworn by the Board Chairman or any member acting in his stead, or by any individual authorized to administer oaths, and upon request, a record shall be made. Such hearings are civil proceedings and the standard for decision is preponderance of the evidence.
(3) The hearing shall be open to the public.
(4) After the hearing, the Board may retire to executive session to deliberate. Thereafter, its decision shall be publicly announced and, if not unanimous, there shall be a statement of votes by individual members.
(5) The Board shall take action by majority vote.
6.(G) Authorized dispositions subsequent to hearing:
(1) The Board shall dismiss the matter if the hearing reveals the attorney is in compliance;
(2) The Board may enter an order delaying further action for no more than ninety days to allow the attorney to achieve compliance, subsequent to which the Board may suspend the attorney or dismiss the action;
(3) The Board may suspend the license of the attorney subject to reinstatement pursuant to paragraph 6.(1) below.
6.(H) Attorneys who are suspended are subject to the requirements of Rule 11 of the Rules of the Supreme Court Regulating Professional Conduct of Attorneys At Law.
6.(I) Attorneys who have been suspended pursuant to these rules may seek reinstatement by filing an affidavit with the Board or its Secretary. That affidavit must assert that the noncompliance has been corrected and that the attorney is presently in compliance with these rules. Attached to the affidavit shall be documentation of reinstatement requirements of the Board, and the attorney shall pay any reinstatement fees that the Board has assessed. The Board may then reinstate the attorney.
RULE 7.
APPEALS
7.(A) Final determinations as to accreditation of a sponsor by the Secretary or a committee of the Board shall, upon request of the aggrieved sponsor, be reviewed by the Board. There shall be no further review of such determinations.
7.(B) Final determinations by the Board, which result in suspension of an attorney, may be appealed to the Arkansas Supreme Court. Such appeal shall be heard de novo on the record from the Board proceedings.
7.(C) To effect an appeal, the suspended attorney shall file the record with the Supreme Court Clerk within thirty days from the entry of order of suspension. The appellant shall bear the cost of record preparation.
I remain opposed to this court using its power to enforce and promote a project of the Arkansas Bar Association.
While our use of force is only a matter of petty tyranny, it is tyranny all the same. While that will not destroy the independent spirit of the Arkansas lawyer, it will dull it; while the program will not seriously diminish the good name of education, it will mock it.
I have no quarrel with the projects and useful programs of the Arkansas Bar Association, a private, professional organization. They are just not necessarily the business of this court.
I feel it necessary to point out that this court does not have the right to require full time judges, who are prohibited from practicing law, to participate in this program. State Bar of California v. Superior Court, 207 Cal. 323, 278 P. 432 (1929); See also Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15 (1960); Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986); Featherstone v. Folbre, 75 Ark. 510, 88 S.W. 554 (1905);Baxter v. Brooks, 29 Ark. 173 (1874); Good, ex parte, 19 Ark. 410 (1858); Allis, ex parte, 12 Ark. 101 (1851); Marr, ex parte, 12 Ark. 84 (1851); Carnall v. Crawford County, 11 Ark. 604 (1851).
We do not even pay the annual fee lawyers are required to pay. (However, I know of at least one judge who did pay his dues voluntarily.)
For those interested in comparing what a different generation of justices thought about using force to overcome independent thought and action, see In the Matter of the Integration of the Bar, 222 Ark. 35, 259 S.W.2d 144 (1953).