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Bar News - March 4, 2005 NHMCLE News: Review of the 2003-2004 Reporting Year The report, along with the appendices, is posted at www.nhbar.org under NHMCLE SC Rule 53 Info. OVERVIEW This year the NHMCLE Board took a major step towards streamlining the administration of SC Rule 53, with the purchase of computer software designed to make CLE program information more accessible and to facilitate filing for lawyers and program sponsors. The new system will be accessed through the NHBA Web site. Lawyers will be able to check their CLE attendance as reported by program sponsors, make application for non-approved programs and review all courses approved in New Hampshire at any time. Plans are also underway for electronic filing of attorney Certificates of Compliance. This year the Board formalized its relationship with the New Hampshire Bar Association. The Board and the Bar Board of Governors signed an administrative agreement outlining their mutual expectations, the services to be performed and the basis for fees to be paid. The agreement, signed June 1, 2004, concludes a long-running discussion between the parties and defines their working relationship for the future. The 2004 Certificate of Compliance booklet contained a list of accredited CLE providers and worksheets to explain teaching and publication credit calculations, as well as an application for use by lawyers seeking credit for courses attended that were not presented by an Annual Sponsor or otherwise approved in New Hampshire. A copy of the booklet is included in Appendix A, and the same information is available on the Web at www.nhbar.org-NHMCLE SC Rule 53 Info. In addition to the usual NHMCLE activities, the Board's Decade Review Committee concluded its work reviewing the administration of Rule 53 and its Regulations and the funding of the NHMCLE program, which is summarized below. The NHMCLE Board accepted the final report, which was forwarded to the Supreme Court for consideration in May 2004. BOARD MEMBERSHIP AND ACTIVITIES Board Chair Douglas R. Chamberlain and Board Vice Chair James Q. Shirley were re-appointed to the NHMCLE Board on February 14, 2004. Their new terms will expire in 2007. A full list of Board members and their term expiration dates is provided in Appendix B. DECADE REVIEW REPORT The Decade Review Committee spent two years comparing the New Hampshire MCLE requirements and program financing and administration with methods used in other MCLE states, and reviewed the results of a membership survey conducted during the summer and fall of 2002. In response to the Committee's recommendations, the NHMCLE Board adopted a revised set of Regulations in July 2004, discussed below. The Decade Review Report without appendixes attached as Appendix C and referred to throughout this report, details recommendations for changes to SC Rule 53. The recommendations attempt to codify established NHMCLE practices and to ease the reporting process where reasonable and appropriate. Since SC Rule 53 was adopted in 1992, the delivery of CLE programs has expanded from largely classroom and lecture-style presentations to those conducted via conference telephone, satellite hookup and the Internet, blurring the definition of a "live" program. The Board has already adopted a broad definition of "live" programs, as detailed in Reg 53.3 (A) (1): Faculty or qualified commentators shall be contemporaneously available to answer questions or offer comments. Distance learning on-line courses will qualify as live programming only if lawyers can communicate with faculty by e-mail or other reasonably contemporaneous method. The new delivery methods also provide a forum for programs on very specific and advanced topics of law that would not be economically feasible to present in the traditional way, especially in smaller states such as New Hampshire. In light of these advances, the NHMCLE Board believes that there is no reason to require completion of "live" programs. The NHMCLE Board also recommends that the separate two-hour ethics and professionalism requirement be eliminated, in favor of a sponsor requirement that all programs address ethical issues as an integral component of every program, if and as appropriate. Other changes recommended by the report include:
REGULATIONS The NHMCLE Board adopted a new set of Regulations addressing other issues discussed during the Decade Review process. The 16 changes in the Regulations clarify the current practice in reviewing applications and determining credit, readjust the amount of sponsor application fees to a uniform figure of $40, increase the initial lawyer late filing fee to $50, and specify the types of programs qualifying for ethics and professionalism credit in the area of law practice management. The text of the new Regulations and a key to these changes are included as Appendix D. AUDIT Pursuant to Reg. 53.6 (B), the Board completed its eighth annual audit of lawyers' Certificates of Compliance. This year, problems with sponsor record-keeping were noted and addressed with the organizations involved. As in past years, some audited attorneys were required to revise their filings as a result of incorrect dates or credits listed. In cases where the audit process disclosed deficiencies, the lawyers in question were encouraged to review and upgrade CLE record-keeping practices in their offices. FINANCIAL REPORT Once again, unanticipated income from lawyer late filing fees and sponsor application fees turned an expected budget deficit to a $23 surplus for the year ending May 31, 2004. (Note that the program's fiscal year mirrors that of the NHBA, which provides administrative and support services to the program, and not the program-reporting year of July 1 through June 30th.) Late fees were more than $2,700 over budget and sponsor fees exceeded budget by $7,500, due largely to the increasing number of on-line courses. The NHMCLE program has relied on these unpredictable sources of revenue to rescue the budget from deficit since the program began, with varied success from year to year. As the Board takes needed steps to facilitate the filing process, it is expected that more lawyers will comply on a timely basis. However, the result will almost certainly be that late filing fees will no longer prove to be the program's financial salvation on a year-in and year-out basis. More importantly, as a matter of principle as well as sound fiscal policy, the Board does not believe the program funding should rely on late fees from delinquent lawyers as its single largest source of income. The costs to administer the program should instead be borne by all who are required to participate. The Decade Review Committee report recommends that a minimal annual fee be charged to all lawyers in active membership and subject to the MCLE requirement, to pay the program's administrative costs. This is one of two methods used in states where the MCLE program is not included as a part of the court budget. The other method assesses fees on lawyers and /or CLE sponsors on a per-lawyer, per-credit hour basis. This method requires additional staff to administer, and frankly tends to discourage CLE attendance for more than the minimum credits required each year. The NHMCLE Board thus does not endorse this method for New Hampshire. The annual fee (a figure of $10 is currently proposed) could be included as a separate Court fee on the dues bill. Alternatively, the Board could bill lawyers individually for the fee or require that the same be submitted with the Certificate of Compliance, each of which would entail additional administrative costs for the Board. Appendix E contains the audited financial statement for the NHMCLE program for the Bar's fiscal year ending May 31, 2004. These figures do not reflect the purchase of the new computer software, as the NHBA Accounting Department withdrew its $17,100 cost from the Board's Bow Mills Bank & Trust account after May 31, 2004. The balance in that account was $64,238.36 as of December 31, 2004. COMPLIANCE In 2004, New Hampshire lawyers could choose to complete their Certificates of Compliance using an online feature that automatically calculated their credits in the various categories (live, ethics and professionalism, etc.). Almost 250 lawyers used this feature, and the Board received many positive comments concerning the new service. While for the present lawyers still must print, sign and mail the completed form to the Board, the auto compliance form is designed as an interim step to full electronic reporting. The NHMCLE Board presumptively approved all CLE courses offered by 76 organizations designated as Annual Sponsors. A list of these organizations is printed in the Certificate of Compliance booklet and quarterly in NH Bar News, and is also available on the NHBA Web site. In the final phase of compliance for 2003, on January 23, 2004, 21 lawyers were referred to the Supreme Court for suspension. Of that number, 13 lawyers filed and paid the late fee of $425 and eight were suspended from practice. As of August 1, 2004 the status of 2004 Certificate of Compliance filings, as compared to the previous five years, was as follows: CONCLUSION While the NHMCLE program completed another successful and solvent year in 2004, through the Decade Review Report the Board has presented the Supreme Court with a plan to promote the fundamental goals of MCLE and to create a reliable, self-funding mechanism to operate the program. Board representatives plan to attend any hearings on these proposals, to answer questions or explain the Report's recommendations. Also, this year the Board will fully implement the new computer software system and develop a fully electronic filing system for lawyers, encouraging timely compliance with the NHMCLE requirement.
Editor's Note: In an upcoming issue, Bar News will report on reactions to the recommendations of the NHMCLE Decade Review Committee. |
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