Most every lawyer in Illinois should be aware that in September 2005, the Supreme Court of Illinois took the significant step of establishing minimum continuing legal education ("MCLE") requirements for attorneys under Supreme Court Rules 790-798. Under the new rules, attorneys with last names ending in A-M were required to complete their first MCLE classes prior to June 30, 2008. Attorneys with last names ending in N-Z were supposed to be done by June 30, 2009. Illinois’ Attorney Registration & Disciplinary Commission ("ARDC") has thus now begun evaluating the initial success of the program. The numbers so far look fairly promising.
When we asked Jim Grogan, Deputy Administrator and Chief Counsel for the ARDC, whether attorneys were disregarding their obligations and failing to complete their MCLE requirements, he told us, "It’s not happening, thankfully, as much as we were thinking it might. But it does happen." There are attorneys out there who haven’t yet completed their initial MCLE requirements, who are therefore not currently authorized to practice law, but they represent less than 1% of the number of attorneys who are licensed and authorized to practice. Indeed, of the roughly 35,000 attorneys who were due to complete their MCLE during the second reporting period, only 310 were removed from the master rolls in January.
Illinois is a self-certification state so those attorneys whom the ARDC has found should not be authorized to practice because they have not completed their MCLE are attorneys who have not reported compliance. Under Illinois law, attorneys must maintain records of compliance in their files and report no later than 31 days after the end of their two-year reporting period to avoid late fees (The MCLE Rules list illness, financial hardship or other extraordinary or extenuating circumstances beyond the control of the attorney as circumstances that may establish good cause for an exemption or extension.). If an attorney does not comply with the MCLE requirements in response to an initial notice of non-compliance, the process continues. This process includes a grace period, a second notice by the MCLE Board, and a final notice from the ARDC. The ARDC then removes the name of an attorney who fails to demonctrate compliance from the Master Roll of Attorneys. The process takes no less than four months from the original end date of the attorney’s reporting period. Once a removed attorney completes the credits and pays the reinstatement fees, it takes only three to four business days for the ARDC and MCLE Board to communicate and for their systems to link up and return the attorney to active status on the ARDC’s website.
Although the MCLE requirements are relatively new, Grogan said there is past experience to draw on with lawyers who have failed to comply with a registration requirement – the processes are similar. According to Grogan, most attorneys usually come into compliance immediately after they are notified.
Grogan is encouraged by the trend reflected in the most recent statistics which show increasing awareness of and compliance with these requirements. During the 2009 registration year, 680 Illinois lawyers were removed from the Master Roll for not complying with MCLE requirements. In January, 2010, that number dropped to roughly 300 active practitioners who were removed from the Master Roll (a total of less than 1,000 out of almost 88,000 registered attorneys). "I’m happy with that number," Grogan told us, "it tells us the message is getting out."
Grogan said that MCLE violations are usually discovered while an investigation is taking place for an unrelated grievance (i.e., failure to communicate with a client). He said that it is also not unusual for another attorney engaged in a transaction with a non-complying attorney to express concern. According to Grogan, compliant lawyers are rightfully hesitant about aiding in the unauthorized practice of law.
Many senior practitioners (those in their mid to late 70s), call the ARDC expressing concern that taking the courses will constitute a hardship. Grogan said that "I feel sad about what they’re dealing with. There are a lot of these guys, older attorneys in their 70s, who tell us they’re not sure its worth the effort. I tell them, ‘no, no, don’t give it up’ and, thankfully, they haven’t. I’ve heard back from a number of attorneys who said, ‘I enjoyed it, I’m glad I didn’t give up!" Grogan reiterated that the MCLE Board web site lists a wealth of courses available in the area. He also said he was glad for organizations like the DCBA which offer free MCLE courses to their membership and ensure that there are plenty of opportunities for lawyers to satisfy their MCLE requirements.
Not taking MCLE courses, or earning nontraditional credit to be in compliance with the Rules is a serious infraction. In Illinois, attorneys are subject to audit. If an audit reveals an inaccurate certification has been filed, that attorney is given 60 days to file an amended certification. If the results of the audit suggest that a false certification was filed, the MCLE Director will provide that information to the ARDC.
Against this backdrop, Karen Litscher Johnson, J.D., Director of the MCLE Board of the Supreme Court of Illinois, hopes that attorneys approach the program with the right attitude: "When attorneys first think of MCLE, I would like them to consider the Court’s preamble to the Rules…’[t]he public contemplates that attorneys will maintain certain standards of professional competence throughout their careers in the practice of law.’ As the Court noted in the preamble, ‘[t]he [Rules] are intended to assure that those attorneys licensed to practice law in Illinois remain current regarding the requisite knowledge and skills necessary to fulfill the professional responsibilities and obligations of their respective practices and thereby improve the standards of the professional in general.’ I hope that attorneys view the MCLE Board as the primary resource for information on the MCLE requirements and on the MCLE courses."
Not surprisingly, reactions by attorneys to the new requirements differ. Resa Welch, Project Coordinator for the MCLE Board, found the reaction "depends on the individual attorney and what they believe their needs and requirements are for their profession. Many are in agreement with the program and some don’t feel they need further education because experience is their teacher." Litscher Johnson noted, "many lawyers acknowledge the importance of continuing legal education and earn well in excess of the minimum hours required."
What are the requirements? Every attorney is assigned a two-year reporting period based on the first letter of the attorney’s surname. Attorneys with last names ending in A-M are thus expected to complete 24 hours of MCLE within the two year period ending June 30, 2010 and those with last names ending in N-Z must complete their next 24 hours of MCLE by June 30, 2011. Thereafter, every non-exempt attorney in Illinois will be required to report 30 credit hours for each two-year reporting period. Four of those hours must qualify as "professional responsibility" 1
There are three ways to earn credit hours: participation in CLE classes presented by an Illinois provider accredited by the Board; recognition of hours earned at live, out-of-state courses that meet certain requirements in the Rules; and participation in non-traditional CLE that meets defined criteria (including attendance in law school classes, part-time teaching at a college or law school, presenting accredited CLE, having a book or article published, attending certain bar association meetings, and even judging law school moot court arguments).
Rule 792 (c) requires that the MCLE program be financially self-supporting. This is accomplished primarily through fees charged to the accredited course providers. Lists of courses accredited for Illinois are easily accessible at mcleboard.org. You can also check there for a list of states that the MCLE Board has determined have comparable CLE requirements for those live courses that may qualify for application as an out-of-state course.
Exemptions (and partial exemptions) are available for inactive and retired lawyers, out-of-state lawyers, judges and certain employees of the judiciary, and Armed Forces personnel. Temporary exemptions and extensions are also available. Applications for exemption and extension are available on the website. Certification of compliance is available online as well.
The MCLE Board exists not only to administer the program, but to also serve as the main resource for attorneys seeking assistance and/or classes. As Grogan stated, the "M" in MCLE stands for the minimum classes required; the "M" in most other states stands for mandatory. For a profession that sometimes suffers an unfair amount of bad publicity caused by a small number of "bad apples," MCLE requirements can’t help but to be a good thing!
1 Attorneys admitted to practice January 1, 2006 and after must complete the Basic Skills Course requirement within one year of admission to the Illinois bar. After that one-year period, the general MCLE requirements apply. See Rule 793 (c). The ARDC reports that for the 2009 registration year, there were 52 newly admitted lawyers whose names were removed from the Master Roll of Attorneys for failing to comply with the Basic Skills Course requirement. See http://www.iardc.org/Annual Report2008.pdf.
Susan Raab Kloberdanz graduated from Saint Mary’s College in Notre Dame, Indiana with a B.S. in Biology. She received an MBA and MPH from Northern Illinois University and is currently a paralegal student at Elgin Community College. She would like to sincerely thank Ms. Laurel Vietzen, head of the paralegal program at ECC, for her support, input and review of this article.