To:        The New Hampshire Supreme Court

From:    The NHMCLE Board

Re:       Review of the Reporting Year, July 1, 2004-June 30, 2005

Overview

This was a transition year for NHMCLE in terms of administering SC Rule 53 with the installation of the long-awaited MCLE software system.  The system allows lawyers and CLE sponsors to apply online for course accreditation, and permits lawyers to review their reported attendance at CLE programs throughout the reporting year.  Bar members will now have the opportunity to review a database consisting of all courses approved for MCLE credit in New Hampshire, as well as to look at their personal online record of attendance created from reports by CLE sponsors and the lawyer’s own applications for MCLE credit.  For 2005, however, the compliance process was conducted as in past years: lawyers were asked to submit signed Certificates of Compliance listing their creditable CLE activities for the reporting year, as manually compiled by each lawyer.  The NHMCLE Office has been reconciling these paper compliance reports with its electronic records, in order to complete the transfer to the new reporting system for 2006.

The 2005 Certificate of Compliance booklet mailed to lawyers with their NHBA dues invoice contained the list of accredited CLE sponsors and worksheets to explain teaching and publication credit calculations, as well as an application form for use by lawyers seeking credit for courses attended that were not presented by an Annual Sponsor or otherwise approved in New Hampshire. The same information that lawyers received in their dues invoice is available on the Web at www.nhbar.org—NHMCLE SC Rule 53 Info.

SC Rule 42—Admission on Motion

Beginning January 1, 2005, Maine lawyers, joining those from Vermont, were permitted to apply for admission on motion in New Hampshire, provided the NHMCLE Office has certified their completion of a minimum of 15 credits of CLE in New Hampshire practice prior to submission of their request for admission.  During this period, seven Vermont lawyers and nine from Maine requested such certification, contrasted with the prior reporting year which saw only three such requests, all from Vermont lawyers.

Board Membership and Activities

Retired Justice Horton became the NHBA representative on the NHMCLE Board in February, continuing his long-time service. His term expires February 14, 2008.  Justice James Duggan assumed the Supreme Court seat. 

Decade Review Report

The Court reviewed the proposals included in the Board’s Decade Review Report, and as a result, on December 27, 2004 adopted temporary changes to SC Rule 53 as to certain proposals, with the remainder being scheduled for a public hearing before the Rules Committee.  One of the changes adopted by the Court created an exemption for lawyers on active duty with the U.S. Armed Forces and stationed outside the state for more than three months of a reporting year. Another provides that pre-recorded CLE programs are creditable for MCLE purposes only if the lawyer is exposed to the program within three years following its production.       

The Court’s Rules Committee held a public hearing on all the Report’s recommendations on June 1, 2005 as the culmination of a Decade Review process involving the Board’s evaluation of New Hampshire MCLE credit requirements, program financing and administrative procedures in light of those of other MCLE states, as well as the results of the twelve-question survey of members of the New Hampshire Bar concerning the MCLE program.  The changes to SC Rule 53 requested by the Board as a result of the Decade Review process and recently approved by the Court, will (1) put the NHMCLE program on a more stable path financially, by introducing an annual filing fee for all lawyers subject to the Rule; and (2) ease both the administration of the Rule and lawyer filing requirements, by eliminating the separate live attendance requirement.

Regulations

The NHMCLE Board made no changes to the Regulations this year.

Audit

Pursuant to Reg. 53.6 (B), the Board completed its ninth annual audit of lawyers’ Certificates of Compliance. This year, problems with sponsor record-keeping were noted and addressed with the organizations.  As in past years, some audited attorneys were required to revise their filings as a result of listing incorrect dates, titles or credits. The audit disclosed that one lawyer had incorrectly reported ethics credits for a course that did not have them.  The lawyer was required to complete additional ethics credits, and fees for late compliance were assessed in accordance with the Rule and Regulations.  Another lawyer listed courses on his 2004 Certificate that he had previously reported on his 2003 Certificate.  This lawyer was required to complete additional courses and report them on a revised 2004 Certificate, and late compliance fees were also assessed.

Generally, 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. 

The new compliance process planned for 2006, under which lawyers will review attendance records compiled by the Board and based largely on information supplied by course sponsors, will address some of these issues.  Certificates of Compliance should no longer list courses that appeared only as entries on lawyers’ calendars and problems with inaccurate course titles and attendance dates should be minimized.

Financial Report

Lawyer late filing fees far surpassed the amount collected in previous years, coming in almost $20,000 higher than expected, which reduced a large anticipated deficit to less than $1,500 for the year ending May 31, 2005.  The $54,260 in late filing fees is the second highest amount ever collected. (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 1st to June 30th.)  Annual Sponsor course fees and individual course fees from out of state sponsors also contributed more than budgeted to revenue.  In terms of expenditures, data processing and copier maintenance costs were less than expected, and budgeted software upgrades were not yet available for purchase, which delayed anticipated outlays for that item. 

2005 Compliance

In 2005, New Hampshire lawyers could select to complete their Certificates of Compliance using an online format that automatically calculated their credits in the various credit categories.  Almost 300 lawyers utilized this feature, and many sent the Board positive comments about the new service.  While this feature still required lawyers to print out the form and sign it before mailing, the auto compliance form was intended as a helpful interim step to full electronic reporting.

The NHMCLE Board presumptively approved all CLE courses offered by 78 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 addition, the Board, through its Attorney Compliance and Sponsor Compliance Committees, reviewed and, where appropriate, approved additional courses on an individual basis.  Lawyers submitted 436 programs for approval, while another 474 programs were submitted by CLE providers not participating in the Board’s Annual Sponsor program. 

In the final phase of compliance for 2004, on January 23, 2005, 40 lawyers were referred to the Supreme Court for suspension.  Of that number, 33 lawyers ultimately filed and paid the late fee of $450 and seven were suspended from practice.  As of August 1, 2005 the status of 2005 Certificate of Compliance filings, as compared to the previous five years, was as follows:

                                    2005     2004     2003     2002     2001     2000

A. In Compliance           3,418    3,365    3,349    3,308    3,160    3,157   

B. Exempt                     1,791    1,765    1,583    1,545    1,419    1,304               

C. Incomplete                16          18             13        44         26          2               

D. Late                         474       404           399       375      435       474      

Compliance for 2006 and Beyond

As the new software system enhances NHMCLE’s capabilities, the compliance process for 2006 and future reporting years will likewise be altered.  Articles in NH Bar News have introduced lawyers to plans for the 2006 filing season, advising lawyers that they now have an online record of their CLE attendance as reported by sponsors and/or credited by the Board pursuant to their own applications.  While lawyers can request changes to entries based on their actual attendance at any time by email, the year-end certificate filing process will continue to constitute the final reconciliation of the attorney’s annual MCLE record. 

The NHMCLE Office will send an interim report of attendance to lawyers in April to outline the new process and request any additional attendance reports.   At the end of the reporting year, the NHMCLE Office will send lawyers a list of the CLE courses completed by him or her during that year, which will serve as the lawyer’s Certificate of Compliance.  They will be asked to compare the printed Certificate with their records and correct, sign and return it to complete the process.  The Certificate will indicate any deficiencies and provide direction to remediate them.  In order to facilitate this process the Board has requested the Court to amend the Rule to change the current August 1 filing date to October 1, beginning with the 2006 reporting year. 

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