To be or not to be — exempt

By Psyche Pascual
Staff Writer

Sunnyvale attorney Michael A. Nichols had been practicing for more than 40 years, regularly fulfilling his Minimum Continuing Legal Education requirements when he hit a snag. On June 14, he wrapped up his law practice and retired.

Even though he was retiring, he’d already completed 25 hours of MCLE before filing for inactive status.

“I finished my hours like a good attorney, and I tried to report it,” Nichols said. But he was caught offguard when he couldn’t file a compliance report on My State Bar Profile. “Much to my surprise, I found out I didn’t have to do it.”

Nichols had never been through an MCLE audit, so he contacted the State Bar to make sure that he was not required to report his hours. “I’m the kind of guy who makes sure it says what I think it says,” Nichols said.

Fortunately for Nichols, he didn’t have to do anything else because he is inactive.

Some attorneys who fall under certain categories aren’t required to fulfill their MCLE hours because they are claiming an MCLE exemption. Unlike the automatic reprieve Nichols got, attorneys who are exempt don’t have to complete MCLE hours. But they still have to file a report on their exempt status or face penalties.

Although MCLE rules do spell out which categories of attorneys are exempt, they may be confusing, says Dina DiLoreto, managing director for member records and compliance.

“Unfortunately, one of the problems that come up when attorneys are audited is that some misunderstand the exemptions,” DiLoreto said. “Attorneys risk failing an audit by filing a false declaration when they may have a misunderstanding about the [exemption] categories.”

Here are some examples of lawyers who can claim an exemption.

Certain public officials

What’s one thing Gov. Jerry Brown and state Attorney General Kamala Harris have in common? Both are active attorneys, but are exempt from completing MCLE hours under Rule 2.54(A)(1).

That’s not true for superior court attorneys, mayors and city council members. So even if you’re the mayor of a large city like Los Angeles, and you’re an active attorney and can’t claim another exemption, you still have to report your hours to the State Bar.

New lawyers

If you’re in the batch of new attorneys who took their oaths in December, and you’re in group 3, you don’t have to comply with MCLE reporting by Feb. 3. Lawyers new to California who have been active for less than four months also don’t have to comply by Feb. 3.

Certain California state and federal attorneys, administrative law judges and clerks

State attorneys and administrative law judges may claim exemptions as well, as may law clerks and attorneys who work for the military. They do not have to be full-time as long as they are permanent or probationary state employees who don’t otherwise practice law.

However, there’s a group that’s NOT covered under the exemptions, including district attorneys, public defenders, court commissioners, county and city attorneys and attorneys who work for the University of California or the State Bar.

Full-time professors

The rules also exempt attorneys who are full-time instructors at a law school accredited by the State Bar of California, the American Bar Association (ABA), or both. Part-time instructors, however, must comply. But depending on how many hours they teach, part-time and adjunct professors can claim MCLE credit for many of those courses.

Remember that claiming an MCLE exemption doesn’t excuse attorneys from reporting their exempt status. Remember to file a report on My State Bar Profile, and if you still have a question, call the MCLE program at 888-800-3400 to make sure you really are exempt.