Two elements of a proposal to update Supreme Court Rule 53, the NH Minimum Continuing Legal Education reporting requirement, are drawing criticism that the changes will diminish the favorable influence of the CLE requirement upon the Bar.

The proposal, now awaiting a public hearing before the NH Supreme Court Advisory Committee on Rules, would simplify the rule by eliminating the specifications for two hours of ethics/professionalism credit as part of the annual 12-hour requirement, and the necessity that at least half of that requirement is met in a "live" setting where interaction is possible with the CLE presenters.

The changes to SC Rule 53 are among a package of rule changes that will be considered at a June 1 public hearing of the rules committee. (See page 26 for article on other rules changes to be reviewed, including new rules specifically allowing "limited appearances" by attorneys providing a limited scope of legal services to otherwise self-represented clients.)

The NHBA Board of Governors has discussed the changes proposed for the NHMCLE Rule at its recent meetings but has not yet formally adopted a position. Several board members voiced concern, saying that they believed that eliminating the requirements for "live" participation in CLEs and for specific ethics program credits does not advance professionalism in the Bar.

The Supreme Court NHMCLE Board recently conducted a 10-year review of the CLE requirement initially adopted in 1991. The NHMCLE Board surveyed members, reviewed the mandatory rules in other states and then drew up a number of recommendations. Recommendations that have met less controversy are provisions for members returning from suspended or inactive status, and exemptions from reporting for members in the military if they were on active duty for at least three months of a reporting year. (Full text of the Decade Review Report is at www.nhbar.org under NHMCLE - Rule 53 Info.)

The NHMCLE Board also is setting up a computerized system that will allow program sponsors to enter CLE attendance into a database that members may access to review course information and ultimately file their annual report electronically. To fund the new filing system, and also to establish a more reliable funding source, the NHMCLE Board is recommending to the Supreme Court that it be allowed to charge a small annual filing fee to be paid by each attorney covered by the rule. The single largest source of NHMCLE's income now derives from late filing fees from delinquent attorneys.

NHMCLE Board Chair Douglas Chamberlain said all of the recommendations arising from the Decade Review report were endorsed by the NHMCLE Board, which includes representatives from the Bar, although he acknowledged that two of the 10 members of the board have changed since the recommendations were approved. At least one NHMCLE Board member abstained from the vote endorsing the report's recommendations.

Chamberlain met with the NHBA Board of Governors in December to discuss the changes. Several NHBA board members at that meeting, and at subsequent meetings, expressed concern about the proposal's lack of emphasis upon live programming and the lack of an ethics requirement.

In an interview with Bar News, Chamberlain said the NHMCLE Board endorsed the approach of "making ethics and professionalism an integral part" of every program but not requiring a specific duration. The Board favored omitting the specific ethics/professionalism requirement for several reasons. Too often under the current system, Chamberlain believes, ethics credits are advertised but it is unclear where in the program they occur, and it has become necessary for those administering the rule to "parse agendas" to verify whether an ethics component actually exists. In some cases, an ethics portion of dubious value or relevance is "tacked onto" the agenda of a CLE program. Dropping the specific requirement, he added, won't dissuade program providers from continuing to offer ethics/professionalism-oriented programming.

Members of several Bar committees expressed concern about the impact on professionalism within the Bar of eliminating the requirement for "face time" by members. "The proposed rule does not recognize the value of live interaction," said Russell Hilliard, the immediate past president of the Bar and this year's chair of the Bar's Continuing Legal Education Committee. At recent meetings of the Bar's CLE Committee, there was "almost universal" opposition to the deletion of the "live" and "ethics" requirements, Hilliard said.

Hilliard denied that the committee's opposition stemmed from its interest in preserving the revenue from live programming. "It's a philosophical view, not an economic issue. We're doing very well with our online CLE - it's much less expensive to produce than live programming. What we want to preserve is the experience of attending a program with other lawyers, and ensuring that all attorneys have some degree of interaction with faculty and the other attendees."

Chamberlain said the NHMCLE Board came to believe that the "live" credit requirement had outlived its usefulness. New media and methods for delivery of CLE -such as tele-conferences, satellite CLE and online CLE- have "blurred the lines" that formerly distinguished "live" CLE from static programming such as pre-recorded videotapes, Chamberlain pointed out. For example, online CLE programs that members can participate in without leaving their homes or offices qualify as "live" because of the availability of two-way communication with faculty members via e-mail, even if it is on a time-delayed basis. Chamberlain said the NHMCLE Board recognizes that sitting in a room listening to a lecture is not the ideal learning mode for all types of learners and supporters of the Decade Review recommendations note that traveling to programs may be a hardship for some Bar members living in rural areas or who have niche practices where live, on-site programming is unavailable.

Eliminating both the ethics and live requirements also will streamline the administration of the rule, Chamberlain said. (The NHMCLE rule is administered by the Bar Association for the NH Supreme Court. Lee Jones of the Bar staff serves as liaison to the NHMCLE Board.)

In an interview, CLE Chair Hilliard said that perhaps there could be better ways to ensure that ethics credits earned are meaningful, but that difficulty in administering the rule should not be a reason to eliminate the ethics requirement. "That is akin to throwing the baby out with the bath water," he said.

Joseph N. Laplante, chair of the NHBA's Standing Committee on Professionalism, said his committee had briefly discussed the proposal, but it has not yet been asked by the Board of Governors to provide its input on it. However, sentiment was "overwhelmingly" unfavorable to the idea of dropping the ethics/professionalism and live requirements.

The Ethics Committee was scheduled to discuss the NHMCLE rules proposals at its April 13 meeting, said Linda Landis, chair.

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