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High Court Upholds Requirement That Lawyers Continue Education

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TIMES LEGAL AFFAIRS WRITER

Lawyers who grumble about having to take expensive courses in stress management or bias sensitivity as a condition of keeping their legal licenses lost a fight Thursday in the California Supreme Court, which upheld a continuing legal education requirement for the profession.

The court, in a 5-2 decision, held that a state law that requires continuing education for lawyers does not violate equal protection rights by exempting some attorneys, including state elected officials and judges.

A Court of Appeal in 1997 found the exemptions unconstitutional and held that the requirement should be abolished. Since then, thousands of lawyers have stopped taking the required courses. As of January, 31,500 lawyers practicing in California had failed to comply with the state mandate to take 36 hours of courses every three years.

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A State Bar of California spokeswoman said Thursday that bar governors will meet to devise a plan for those lawyers to make up the hours. She said no punitive action will be taken because the status of the requirement had been in doubt before Thursday’s ruling.

Critics of the bar have long ridiculed some of the classes that can be taken for educational credits toward the requirement. A recent course offered by the American Bar Assn. for continuing education was called “Transforming Practices: Finding Joy and Satisfaction in the Legal Life.” The two-hour session, at the ABA’s annual convention, was described as a way for lawyers to “find deeper meaning and pleasure in their work by cultivating an awareness of their own inner lives.”

Others that will be offered at the state bar’s annual meeting in Long Beach next month include courses titled “Transform Stress into Growth and Change!” and “Civility and Professionalism: Rambo vs. Matlock,” which is described as a panel discussion featuring videos showing lawyers “at their worst” and a discussion about the impact of rudeness in the profession.

Other courses are more technical, including “Disclosure Requirements and Fiduciary Duties,” “The Role of Life Insurance in Estate Planning” and “Practice Under the 1999 Bankruptcy Reform Act.”

Lawyers can meet the requirements by attending the state bar’s annual meeting at a cost of up to $325, depending on the date of registration. Courses elsewhere vary widely in price, and some can be taken on the Internet. California lawyers pay an estimated $65 million annually to comply with the requirement.

San Francisco lawyer James M. Wagstaffe, who represented the bar in the case, said the overwhelming majority of courses are worthwhile.

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He conceded, however, that the requirement is not particularly popular among lawyers. He joked that his law partners probably would put his picture on a “Wanted” poster because “now they have to take all these courses.”

UC Berkeley law professor Steve Barnett, who wrote a brief in favor of eliminating the program, said it has been a profit-maker for course providers who emphasize “political correctness” in their offerings.

To continue to practice law in California, the state’s 167,290 lawyers must take the equivalent of an hour of study a month. Eight hours over each three-year period must be spent in classes on ethics or law practice management, one hour in elimination of bias in the legal profession and one hour on detection or prevention of substance abuse or emotional distress. Most other states also have continuing education requirements for lawyers.

Under a bar dues bill that is awaiting Gov. Gray Davis’ signature, the requirement would be reduced to only 25 hours, four of them spent in ethics instruction.

Attorney Lew Warden challenged the program after the state bar told him in 1993 that he could no longer practice law in California because he had failed to fulfill the requirement.

Warden, who argued his case before the state high court, could not be reached for comment Thursday.

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Chief Justice Ronald M. George, writing for the court, said the “wisdom” of the exemptions may be questioned, but they do not violate the state or federal constitution.

The continuing education requirement, passed by the Legislature in 1989 as a consumer protection measure, exempts all state elected officials, judges, retired judges, full-time law professors and full-time state and federal employees.

The court held that the exemptions have a rational basis because those who escape the requirement are less likely to represent a significant number of clients on a full-time basis.

Justices Joyce L. Kennard and Janice Rogers Brown dissented. Kennard said that clients of part-time lawyers are just as vulnerable to legal malpractice as those who hire full-time lawyers.

“Try to imagine a law that exempts from professional competency requirements those surgeons who operate on only a few patients each year,” Kennard wrote, “or those commercial pilots who make only a few flights, or those engineers or contractors who build only a few high-rise buildings or freeway overpasses.

“The very idea is ridiculous.”

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