State Bar of California Approves Proposed Plan for Preventative Education for Attorneys

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By Andrea Lavelle

On July 22, 2021, the State Bar approved a five-year preventative education plan to develop and deploy self-assessment modules and e-learning courses for attorneys. According to the plan, the State Bar first discussed a self-assessment program in its January 26–27, 2018 meeting to “facilitate[] a practitioner’s awareness of gaps in knowledge of, and compliance with, professional responsibilities.” One benefit of a self-assessment program is the targeting of attorneys’ areas of weakness to increase attorney competence and avoid misconduct. According to the plan, the self-assessment modules serve as “a diagnostic tool to facilitate identification of any trends in attorney performance of duties and best practices.” For completing self-assessment modules, attorneys could earn MCLE credit, which would serve as an incentive for the lawyers to participate in the courses. The Board approved the first phase of the self-assessment program (a training module addressing client trust accounting practices) in July 2020. The July 2021 plan is the next step in the self-assessment modules and e-learning courses.

The plan includes the following nine self-assessment modules: (1) competence and diligence in representing clients; (2) fee arrangements, fee disputes, and fee sharing; (3) law office management, staffing, and supervision; (4) conflicts of interests; (5) client files, including electronically stored information; (6) communications with clients and marketing; (7) duty of confidentiality; (8) access to justice; and (9) attorney wellness and implicit bias recognition and elimination. The modules would be deployed in sequence over five years, with each module available for six months, after which the State Bar’s Office of Professional Competence would identify trends within particular modules and develop new resources to address attorney weaknesses. At the end of the five years, the Office of Professional Competence will report to the Board and conduct an evaluation of the developed courses, data, and resources.

The e-learning courses are separate from the self-assessment modules, but they follow the same five-year plan. There are eleven one-hour e-learning courses, three of which (elimination of bias, updated new Rules of Professional Conduct, and probation) are already in progress. The remaining courses set through 2025 are: client trust accounting; provision of limited scope representation; fee arrangements, fee disputes, and fee-sharing; overview of the licensed paraprofessional program; lawyer advertising and solicitation; overview of regulatory sandbox program; lawyer provision of nonlegal services and fee-sharing with a nonlawyer; and trial conduct duties. According to the plan, in 2026, the Office of Professional Competence will review the currently implemented new attorney training program and consider updating content based on the results of self-assessment modules and any changes to the California Bar Examination.

The vendor cost of each e-learning course is $36,000, so the remaining eight e-learning courses will cost a total of $288,000. Production of the new attorney training refresh will cost $360,000, for a total e-learning estimated cost of $648,000. The self-assessment modules are roughly estimated at $45,000 each, with an estimated cost of $450,000 for the ten planned courses and $360,000 for up to eight additional courses created after data evaluation of the ten initial courses.

The proposed five-year plan requires dedicated staff, including a legal ethics attorney, a program analyst, and a program assistant, all of whom would handle course development. Current State Bar offices, including the Office of Chief Trial Counsel and the Office of Professional Competence of Attorneys, would also likely contribute.

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