Making the Case for Reform: Colorado’s Proposed Continuing Legal Education Revisions and the Age Exemption ~ By Corinne C. Miller

Gavel

Colorado lawmakers have been diligent in crafting improvements to our Continuing Legal Education (CLE) regime over the past several years. The proposed changes eliminate the vast majority of C.R.C.P 260’s text and replace it with C.R.C.P. 250, both titled “Mandatory Continuing Legal and Judicial Education.” 1

The drafts propose sweeping changes to Colorado CLE requirements, chief among these requiring minimum live programming for both general and ethics credits and requiring public disclosure of an attorney’s CLE transcript. However, perhaps the most critical change is the elimination of the “age exemption,” whereby attorneys over 65 were once exempted from completing CLEs.

Under the current version of Rule 260.5, “Any registered attorney shall be exempt from the minimum educational requirements set forth in these rules for the years following the year of the attorney’s 65th birthday.” C.R.C.P. 260.7 repeals and replaces this language. The new version eliminates the exemption for those over 65, but now includes attorneys who are in inactive or suspended status, deployed in the United States armed forces, or are otherwise unable to complete the CLEs, as consistent with the American Bar Association Model Rule. 2 This provision also contemplates a deferral option if certain criteria are met.

The decision to eliminate the language permitting those over 65 an exemption for CLE is significant and will have a tremendous impact on senior attorneys beginning in 2019, should these proposed changes be adopted.

Maintaining the Age Exemption

The age exemption, still utilized in many states, boasts many advantages for a seasoned attorney. Namely, it rewards those that have been practicing for years by alleviating the burden of the expense and time associated with taking CLE lectures. It also acknowledges the years of practice and experience that necessarily builds over the course of one’s career.

The legal profession is, arguably, one where experience can trump intelligence and preparation. Experience is an enviable characteristic that senior partners have and associates long for. However, the legal profession is also particularly susceptible to sweeping changes at a moment’s notice. Dozens of cases are handed down each week, and keeping up with every change in the law is a daunting task, even for the most eager young associate.

Experienced attorneys, arguably, have equal access to recent publications concerning changes in the law, and, some may believe, more time to read them. Additionally, most senior attorneys have put a great deal of time and dedication into building their firms and reputation — something they are not likely to take lightly. Senior attorneys are incentivized by their own posture to ensure their filings are up-to-date, that their case law is good and valid, and that they are kept apprised of new court procedures. In other words, experienced attorneys can be trusted to keep abreast of current legal trends on their own volition and do not require the rigidity of attending CLEs to prove it.

To be sure, the new Colorado Model Rule of Professional Conduct comment 8 to Rule 1.1 provides an independent requirement for an attorney to “maintain the requisite knowledge and skill” stating that “a lawyer should keep abreast of changes in the law and practice, and changes in communications and other relevant technologies, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” 3

Critics of the proposed changes to Rule 260 could point to this comment as an independent obligation to undertake study, irrespective of CLE requirements. As such, a senior lawyer could technically be in compliance with his ethical duties without undertaking CLEs if the age exemption remained, so long as he otherwise complied with Rule 1.1. It seems from this analysis that requiring attorneys over 65 to take CLEs would be superfluous to the professional rule of conduct arguably already requiring them to do the equivalent.

A Case For Change

On the other hand, the history of continuing legal education and the purposes surrounding it shed light on the benefits of eliminating the age exemption. In studying a similar age exclusion in Texas, past President of the State Bar of Texas, Buck Files, aptly noted the following: “Why should lawyers who were continuing to practice after their 70th birthday have a lesser duty to their clients than those who were under the age of 70?” 4

The American Bar Association’s Purpose Statement as to the Model Rule concerning CLEs states the purpose of CLE requirements as follows: “To maintain public confidence in the legal profession and the rule of law, and to promote the fair administration of justice, it is essential that lawyers be competent regarding the law, legal and practice-oriented skills, the standards and ethical obligations of the legal profession, and the management of their practices.” 5

The question Mr. Files raised was valid: Why should experienced attorneys have less of a duty to their clients? After all, failure to be apprised of modern legal authority and procedure is only to the detriment of the client. Failure to be familiar with emerging legal technologies is ultimately a disservice to the client. The possibility of an attorney saving money and time on CLEs in exchange for his years of servitude should not be weighted such that the result is inconsistent with a client’s best interests.

It is undisputed that attorneys are practicing longer into their lifetimes than ever before. 6 With advancements in technology, lawyers can semi-retire and continue to work on their cases from anywhere in the world. Meanwhile, technology advances, new case law emerges, new rules are implemented and the senior attorney finds himself outside of the office and not privy to important new developments in the legal world. Proponents of eliminating the age exclusion acknowledge the importance of continuing education in a constantly changing profession. They further note that these obligations apply equally to all lawyers, new and seasoned alike, and do not consider age to be the deciding factor in client care and legal knowledge. To that end, the elimination of the age exclusion may be the best method to ensure the best client care and reassurance that all lawyers are kept apprised of changes in the profession — regardless of their age or experience level.

Conclusion

In a recent Colorado Supreme Court Attorney Regulation Advisory Committee Meeting held on March 10, 2017, it was anticipated that the “comments from the legal community tend to indicate that this change will be favorably received.” 7 While novice and experienced attorneys alike value the undeniable benefits an experienced attorney has over his less senior counterparts, the question of whether those over 65 should be required to continue their legal education at the possible expense of client care is a contested one. It is a novel issue that requires a thorough understanding of the history, purposes, and implementation of continuing legal education over the years and is a monumental decision before our lawmakers today.

*The Colorado Supreme Court has requested written comments on these proposed changes by September 5, 2017. Such Comments should be submitted to Cheryl Stevens, Chief Deputy Clerk of the Supreme Court, 2 East 14th Avenue, Denver, CO 80203 no later than 5 p.m. on September 5, 2017.

millerCorinne C. Miller is an associate litigation attorney at Murr Siler & Accomazzo, P.C. in Denver. She focuses her practice on business and commercial litigation, property law and contract disputes. She can be reached for comment at cmiller@msa.legal.

 

 

NOTES

[1] Rule 260 and Rule 250 Proposed Changes, available at www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/Proposed/2017%20Proposed%20Rule%20Changes/Rules%20250%20(new)%20and%20260%20(marked%20and%20clean%20copies).pdf.

[2] Standing Committee on Continuing Legal Education Commission on Lawyer Assistance Programs Law Practice Division, Report to the House of Delegates, Report concerning American Bar Association Model Rule for Minimum Continuing Legal Education, § 3(B) (Feb. 2017), available at www.americanbar.org/content/dam/aba/administrative/cle/cle_committee/mcle_model_rule_resolution_and_report_as_submitted.authcheckdam.pdf.

[3] C.R.P.C. 1.1, cmt. 8, available at www.cobar.org/Portals/COBAR/repository/rules_of_prof_conduct.pdf.

[4] Buck Files, Serving the Profession and the People: My Changing Thoughts on the Minimum CLE Requirements for All Texas Lawyers, 79 Tex. B.J. 354 (May 2016).

[5] See supra, note 2.

[6] See, e.g. Robert J. Derocher, The Senior Lawyer: Is Your Bar Ready?, 31 ABA Bar Leader 5 (May 2006-2007).

[7] Colorado Supreme Court Attorney Regulation and Advisory Committee, Meeting Minutes (Mar. 10, 2017), available at www.coloradosupremecourt.com/PDF/Advisory%20Committee%20Minutes/Advisory%20Committee%20Minutes%203-10-17.pdf.

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