Alfonso Martinez had been practicing law for less than a year when he received the letter last August: The State Bar was auditing him for compliance with its Minimum Continuing Legal Education (MCLE) requirements. "It was unheard of," says Martinez, an associate at Dion Law Office in Westlake Village. "I showed the letter to my buddies from law school and to people who had been practicing law for over ten years. No one had ever seen anything like it."
Martinez's confusion is typical. The State Bar of California only started auditing lawyers to ensure compliance with MCLE requirements in 2011, referring them for discipline if needed. In 2012 it audited 5 percent of the lawyers required to report their credits. This year the State Bar plans to audit twice as many.
"When we see the first [disciplinary] case published, I think membership will get the notice and we'll start to see a remedial effect," says Paul Virgo, of counsel with the Century Law Group, who specializes in defending attorneys in investigations and regulatory proceedings. He noted anecdotally that most of the lawyers snared by the audit were more experienced, long-time practitioners.
Martinez, fortunately, was in compliance and had the paperwork to prove it. But many lawyers were caught off guard by the latest round of audits.
"I've never talked to anyone who outright said they didn't comply with MCLE requirements," says Virgo. "My suspicion is that for years lawyers have been filing declarations without ever being audited, so the membership has been conditioned to not save records."
If a lawyer admits to falling short of the MCLE requirements, the consequences are minimal: just a fine of $75 and an admonishment to get in line. Bigger problems come when a lawyer claims to have completed the requirements but can't prove it. In such cases the State Bar likely will file an action accusing the lawyer of lying and moral turpitude.
"You cannot be disbarred for failure to take MCLE," says Jerome Fishkin, a Walnut Creek legal ethics attorney. "But you can be disbarred for lying about it."
Fishkin says most lawyers prosecuted over MCLE compliance will likely be reprimanded or face suspensions of 30 days to six months. Fishkin has received calls from about five audited lawyers seeking consultations since last fall.
"The important thing now is to keep accurate records forever," says Virgo. "And do not sign the [compliance] declaration unless you've proven to yourself that you really have that evidence."