ALI-ABA
MCLE: A Coordinated Approach
I. MCLE Accreditation Procedures
As of the writing of this report, 40 states have adopted minimum continuing legal education (MCLE) requirements. Of these 40 states, all but one (Arizona) approve individual continuing legal education (CLE) activities. Each state, however, has a slightly different set of approval procedures from the others. These jurisdictional differences in accreditation procedures, even if minor, create added complexity and confusion for national, state, and even local continuing legal education (CLE) sponsors and for attorneys licensed to practice in jurisdictions other than (or in addition to) the one in which they reside or practice.
Despite these variations, much potential exists for more uniformity in state accreditation procedures. This committee found substantial degree of commonality in the fundamentals of most states' approval procedures (see Table 1). In three areas, a large majority of the accrediting states have similar rules: (1) use of the Uniform Application for Accreditation; (2) accreditation of sponsors rather than individual CLE activities; and (3) use of the 60-minute credit hour. The committee therefore recommends that the few jurisdictions that have different rules eliminate these differences to achieve greater uniformity among states and thereby lessen the burden for attorneys, sponsors, and accrediting agencies alike.
Uniform Application for Accreditation. Of the 39 accrediting states,1 all but two (California and New York) permit the use of the Uniform Application for Accreditation (Appendix A). This system allows the sponsor to prepare a single form for each activity and submit copies of that form to all the jurisdictions in which attending attorneys will require MCLE credit. An attorney applying for retroactive credit for participating in a CLE activity can also file on this form. The Uniform Application, developed and adopted by AMCLEA (the Association of Mandatory Continuing Legal Education Administrators), the forerunner of ORACLE (the Organization of Regulatory Administrators of Continuing Legal Education), is a superb example of how interstate cooperation can simplify the approval process for attorneys, sponsors, and accrediting agencies.
California, which does not accept the Uniform Application, accredits primarily sponsors, not CLE activities. In that state, the form would theoretically be useful only to an individual attorney seeking retroactive credit for an activity not provided by an approved sponsor. As part of that application, however, the attorney must show a relationship between the activity and the attorney's practice; because the Uniform Application does not ask this question, it is not currently accepted in California. New York requires the use of its own application form, with supporting documentation, and does not allow for retroactive course approval.
Recommendation: States not currently doing so should consider accepting the Uniform Application for Accreditation.
Accreditation of Sponsors. More than three-quarters (30 of 39) of the accrediting states accredit sponsors. Generally, these states reserve the right to reject individual CLE activities and most (22) provide a streamlined approval or notice process for sponsors that have demonstrated their ability to conduct accreditable activities in the past.
Eight of the remaining nine accrediting states do not accredit sponsors. In addition, although allowed by rule, Texas does not in practice offer accredited sponsor status. The reasons given for not offering sponsor accreditation range from attorneys' needs to operational preferences. For example, in 1997 Kentucky suspended accrediting sponsors for the following reasons: mistakes made by accredited sponsors that resulted in attorneys failing to get the credits anticipated from programs; by necessity, an activity-based record-keeping system and activity-based quality standards; an overwhelmingly large number of applications for accreditation of CLE activities, notwithstanding the availability of accredited sponsor status; and a preference for charging fees based upon the actual number of CLE activities a sponsor submits for credit.
The vast majority of states accredit sponsors not only because of the efficiencies of a sponsor accreditation system, but also because of their belief that attorneys are better served if sponsors share with accrediting agencies the responsibility for presenting high quality, professional CLE. Sponsors receive their accreditation only upon showing significant prior experience sponsoring accreditable CLE activities. As a condition of accreditation, sponsors must agree to present CLE activities that meet stated educational objectives and to follow specific procedures for notification, reporting, evaluation, and record keeping. In addition, in many states, sponsors and their activities are subject to "audits" by the accrediting agency for regulatory compliance and educational content. A sponsor accreditation system thus focuses attention on the sponsors of educational activities and holds sponsors responsible for procedural compliance and the provision of quality CLE.
Recommendation: States not currently doing so should consider accrediting sponsors, retaining the right to reject individual CLE activities that fail to meet quality standards.
Length of Credit Hour. Twenty-eight of the 40 MCLE states use the 60-minute hour to calculate CLE credit (see Table 1(a)). For the 12 MCLE states with 50-minute credit hours, this difference results in (1) extra staff costs associated with calculating credits due to the conversion required; (2) confusion for the attorneys who are licensed in the majority of MCLE states that use the 60-minute hour; and (3) confusion for sponsors and attorneys where programs are calculated on the 60-minute hour. Moreover, the 50-minute credit hour is built on the talking-head paradigm, taking time out for introductions and changes in speakers, a model that no longer makes sense in light of the technology-based instructional formats also available today.
The committee recognizes that switching to a 60-minute credit hour will raise the issue of what number of credits to set for the state's total requirement. Staying with the same number of credits, but switching to a longer credit hour, will effectively increase the MCLE requirement. This problem is, however, easily resolved by first stating the credit requirement in terms of minutes. For example, a 15-hour credit requirement calculated on the basis of 50-minute hour would equal 750 minutes. A state would simply maintain the requirement at 750 minutes, or 12.5 credit hours calculated on the basis of a 60-minute hour. (See Table 1(a).) Small adjustments might have to be made for specific requirements, such as ethics hours, but overall the amount of CLE required would remain the same. Accrediting agencies may be concerned that this change will wreak havoc on their record-keeping systems; however, many of these systems are likely already to be based on minutes.
Recommendation: States not currently doing so should consider adopting the 60-minute credit hour.
Accrediting Agency as CLE Sponsor. In most, but not all, of the MCLE states, the entity that accredits CLE does not sponsor CLE. Even in those states in which a single entity acts both as an accreditor and as a sponsor (e.g., a state bar association), the functions usually are organizationally distinct, with separate budgets, staff, and supervision, so as to avoid even the appearance of a conflict of interest. In the few states that do not separate these functions, the dual role can inhibit the ability of accrediting staff to administer MCLE because of perceived conflicts.
Recommendation: States not currently doing so should consider creating distinct and separate departments or organizations, with separate staff, to regulate and sponsor CLE so as to avoid even the appearance of a conflict of interest.
