Responsibilities of a CLE Professional –  What is Your Duty to Maintain Attorney’s 

Compliance?        

By:  

Roger B. Curlin III Carlton Fields, P.A.   

  

Betsy W. Hults Jones Day 

  

Benjamin Toby   Freshfields Bruckhaus Deringer US LLP 

           

Presented at: ACLEA 48th Mid‐Year Meeting 

January 28 ‐ 31, 2012   New Orleans, LA  

Roger B. Curlin III Carlton Fields, P.A. 

Tampa, FL    Roger Curlin is the Professional Development Manager for Carlton Fields and is admitted to practice law in  the  State of  Florida.   A  Florida native, he  formerly practiced  law  in  Sarasota,  Florida  for both  the County and the firm of Walters, Levine, Brown, Klingensmith & Thomison.  He served three years as the Program Attorney  for CLE at Stetson University College of Law,  followed by  two years as the Program Manager for Training and Development at Holland & Knight. His business experience includes serving as an account executive at an international publication company, owning his own consulting business, and serving as a general manager in the food/beverage industry.  Roger  holds  a  B.S.  degree  from  the  University  of  Florida  and  a  J.D.  degree  from  Stetson University College of Law (Gulfport, FL).  He is a member of the Florida Bar and is a very active member of ACLEA, for which he has served previously as Co‐Chair of the Marketing SIG, Co‐Chair of the Las Vegas Planning Committee, and 5‐year member of the Exhibitor/Sponsor Committee. Roger is currently serving his fifth year on  the Executive Committee, and has become  involved  in both  the Executive Leadership and  In‐House SIGs. He is active in community service, focusing particularly on mentoring underprivileged youth, and  enjoys  competition  billiards,  cards,  bowling,  and  reading.  Interestingly, Roger  is  one  of  the  only people to survive an ACLEA encounter with the lethal bark scorpion.   

Betsy W. Hults Jones Day Atlanta, GA   

Betsy Hults  is the Firmwide CLE & Lawyer Training Manager for Jones Day, based  in the Atlanta office. She has been with Jones Day for 28 years, starting as a paralegal and working her way up through the ranks in several administrative positions, including training and recruiting. Betsy holds a B.A degree from Vanderbilt University and a paralegal certificate from the Institute for Paralegal Training in Philadelphia. She is a member of ACLEA where she belongs to the In‐House and Executive Leadership SIGs.  Betsy and her husband have  two  children  ‐ a  third‐year engineering  student at Georgia Tech and a high  school junior. Betsy  is active  in her  local community and enjoys volunteering  in the organizations that  involve the activities of  her children.  

Benjamin Toby Freshfields Bruckhaus Deringer US LLP 

New York, NY    BEN TOBY  is  the US Librarian and  Information Services Manager at Freshfields Bruckhaus Deringer US LLP, a leading international law firm and is based in New York. He joined Freshfields 13 years ago just as the New York State CLE requirements became mandatory. In addition to running library and information services  in  the US offices, Ben overseas  the knowledge management  initiative  in  the US, he develops, facilitates and tracks the earned credits for about 50 CLE programs each year.   Prior  to his current position, he was at  the  firm of Proskauer Rose  for 7 years where was a specialist librarian for their Labor and Employment Law practice. Ben is a member of the American Association of Law Libraries,  the Special Libraries Association and  the Law Libraries Association of Greater New York where he has served on and chaired committees and also elected a director. Ben was a co‐chair of the ACLEA In‐house SIG and was on the editorial committee of In The Loop, where he was recently profiled in “Member Moment”.               

            

Responsibilities of a CLE Professional What is your duty to maintain attorney’s compliance?

There are two main philosophies when it comes to a CLE Professional’s responsibility towards their organization’s attorneys maintaining MCLE compliance. Philosophy One: active support of the attorney’s compliance (record, track, monitor, remind). Philosophy Two: passive support of the attorney’s compliance (the attorney is responsible for their compliance, including recording, tracking, monitoring, etc. – but the department supports them when they have questions.) There are many factors that go into choosing the proper firm/departmental philosophy: staffing, culture, jurisdiction, professionalism, etc. The panel will discuss pros, cons, and best practices for each. Come to the discussion and get all Shakespearian – “To be, or not to be, that is the question...”

Roger Curlin ● rcurlin@carltonfields.com Professional Development Manager Carlton Fields Tampa, Florida Betsy Hults ● bhults@jonesday.com CLE & Lawyer Training Manager Jones Day Atlanta, Georgia Benjamin Toby ● Benjamin.toby@freshfields.com US Librarian and Information Services Manager Freshfields Bruckhaus Deringer New York, New York

ACLEA 48th Mid-Year Meeting ● January 2012 Astor Crowne Plaza

New Orleans, LA

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Materials Overview

Our intent with these materials is to provide as many helpful best practices as we

can for the two main philosophies of organizational responsibility (as well as provide

some introspection for hybrid models of same). We believe most organizations trend or

focus towards one end of the spectrum when it comes to responsibility and it is very

difficult to ‘shift’ allegiances between systems. Our goal is not to provide fodder for

switching philosophies, because of the rarity of this – we felt it is more provident to

explain the pros/cons of each and accentuate best practices that allow a CLE

professional to maximize the benefit to their attorneys, their department, their

organization, and themselves.

Before we delve into each philosophy, a brief discussion is helpful to orient

around why these philosophies may be in place.

Staffing: active support of attorneys’ compliances especially in a multijurisdictional

setting is resource intensive. How many staff an organization has often dictates the

degree of activeness.

Budget: related to staffing, is how much money the organization can invest in software

that supports MCLE recording/tracking. A hefty investment in software can in some

instances counterbalance a smaller staff.

Size: size of the organization certainly affects both administrative/professional staff and

the budget resources that can be deployed to assist with attorney compliance. The

more basic equation is the lower the number of attorneys “=” the smaller a system there

is a need to monitor, track, remind, etc.

Jurisdictions: an overwhelming number of states (provinces, etc. for international)

have some form of Mandatory Continuing Legal Education Requirement for its licensed

attorneys (and sometimes paralegal). The jurisdictions vary on number of credits, types

of credits, timing of credits, approval of credits, tracking of credits, etc – so that there is

very little homogeneity and attorneys or organizations which span borders often times

have a much more challenging process keeping up with compliance. Likewise,

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jurisdictions that have very simple rules for compliance may lend themselves to a

passive support of the attorneys’ compliance since it is relatively simple for the

attorneys to do themselves.

Cultural: do not underestimate the power of “that’s how we have always done it!” This

phrase is a source of much consternation or much clapping depending on what way this

cultural riverbed sends the stream. It is also one of the biggest reasons we believe it is

difficult to switch philosophies at an organization (especially if you wish to go from a

very active/supportive regime to a more passive system).

Professionalism: related to culture, but perhaps more a subset is how the organization

views itself professionally. If the group is highly protective of its image, it may require an

intensively pejorative strategy so none of its attorneys gets in compliance trouble,

blackening the eye of the organization. The same may be said if the organization feels it

is the professional responsibility of its attorneys as individual members of the bar to

meet this basic requirement, which could cut towards a more passive role of support.

Either way, there may be historical reasoning for the chosen philosophy that is based on

professionalism, thereby making it more difficult to undermine or shift systems.

A closing thought before the materials discuss the two philosophies and dive

deeper into best practices and ideas. The mentioned factors can also be used in a

‘backwards’ affect for the department responsible for MCLE compliance (aggressive or

passive). Meaning, if a department is being threatened with a staff cut, an argument can

be made that a shift from aggressive to passive support is warranted, or dollars needed

to be added to software purchases, etc. Another example could be requesting

additional staff if the size of the organization increases through merger, or perhaps a

merged entity has a more synchronized philosophy.

We hope you enjoy our presentation and materials, and if we leave you with one

thought it should be to reflect upon whatever system you use and brainstorm ways you

can make it work better for you, your attorneys, your department, and your organization.

"All the world 's a stage, and all the men and women merely players. They have their

exits and their entrances; And one man in his time plays many parts." – Shakespeare

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Philosophy Two: Passive Support of Attorney Compliance

Remarks prepared by Roger Curlin

Definition: The attorney is responsible for their compliance, including recording,

tracking, monitoring, etc. – but the department supports them when they have

questions.

During my time in Professional Development in law firms (5 years+ now), I have

always overseen a system that relies on the attorney to be responsible for their

compliance. I will quickly discuss the factors that make this the correct decision in my

organization, because that should give perspective to the pros/cons and best practices.

Staffing: According to NALP figures a1-to-50 or 1-to-75 ratio are the typical PD staff to

attorney ratios. My firm currently has 300 attorneys and 2.5 PD staff (where optimum

would be 6 staff). Result: less than optimal ratio lends itself to attorney self-reliance.

Budget: Software tracking systems can run from $20,000 - $100,000 and up,

depending on what functionality/content you want. Our firm has a very basic system

which actually matches our philosophy of attorney self-reliance. If the firm were to

decide to switch to actively supporting attorney compliance, resources would be better

allocated to staff than software budget.

Jurisdictions: All of our offices are in either Florida or Georgia, two very simple states

for application and self-tracking (and in the case of Florida – self-reporting.) Majority of

compliance process can be done electronically.

Cultural: The attorneys at the firm have always taken responsibility for their

compliance. The only groups that needs to be educated on this philosophy are incoming

entry level associates or lateral attorneys.

Professionalism: Our firm prides itself on the quality and professionalism of its

attorneys, and encourages self-reliance and responsibility that pairs nicely with having

attorneys keep an eye on their compliance.

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Main Pros of Passive Philosophy (some of these are restructured from above):

Requires less staff time and resources

If an attorney is out of compliance not a direct criticism of department

Keeps attorneys (and their assistants) more aware of their CLE status and firm

offerings

Main Cons of Passive Philosophy:

The PD Department does not have as much ‘control’ over what the attorneys are

doing

At times where you may want to be more proactive you can’t because it may

send mix messages and possibly create assumptions that you are actively

supporting when you are not

A small percentage of attorneys will always falsely assume you are actively

supporting their compliance, which creates a drop-everything event to assist

them rebuild their compliance history

Even though majority of attorneys seem better aware of getting CLE credits

periodically, a segment does use the passive support to accentuate their ability to

procrastinate, creating a “I need 30 credits” by next week phenomenon

Best Practices of the Passive Philosophy:

Informing: You want to make sure everyone is clear on what is and is not your

responsibility for your attorney’s compliance

o Boiler plate language is good at bottom of communications which give

credits to the attorneys

o Periodic communications to the attorneys reinforcing their role and

responsibility for compliance

o Informing during on-boarding, when entry level or laterals join the firm,

make sure you know the compliance philosophy of the firm (chances are

half the laterals are coming from system that took care of everything)

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o Idea: communication designed for attorney’s assistants only with FAQ

section, educating them on responsibility and giving your department as

resource for clarity

Emergency Kit: Plan for worst case compliance scenario where you can

immediately offer an attorney all the credits they need to comply in an online

format (immediate access) or if not possible next day service of all their credits

on audio disks

o As with most emergency kits, keep it current by checking on it every few

months

o Have your entire team aware of where/how/when etc of this kit in case you

are unavailable to assist

o Use occasions of emergencies to educate your attorney (and their

assistant) on ways to avoid crunch next time

Positive Spin: While some may view the passive system as a less responsive

model than an active model, there are aspects of the system that can be seen in

positive light

o Focus on the individual attention and responsibility that the passive

system instills (also speaks to their professional responsibility)

o Accentuate the fact that PD department is ready at a moment’s notice to

assist any attorney to get into compliance or have questions answered

o Make the process they do follow (example in Florida they enter codes

online in Florida Bar database) as easy as possible (I print the link in the

email I send to the attorneys with their credit form)

Staffing Plug: A passive system can be used as a tool to leverage increased

staff support

o If the department is looking to add staff to take on additional

responsibilities, compliance support is a very visual way to show added

firmwide support benefit to attorneys

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o Depending on the complexity of the firm’s structure, jurisdictions, size, etc

– compliance support may be a part time to fulltime job

Keep the Buffet Full: One of the best ways to make sure attorneys meet their

compliance responsibilities is make a multitude of CLE options available to them

(and promoted to them) on a consistent basis

o My firm installed a new self-use database/interface which allows our

attorneys and their assistants on one page on our website, to select live,

on-demand, or audio disk courses

o Similarly, educate your attorneys to the often “extra” ways than can earn

CLE’s (depending on jurisdiction): teaching CLE, writing, pro bono, judging

law school competitions, and more (the more credits they accumulate, the

less you need to help them cross the compliance threshold)

Educate yourself: At least once or twice a year, take the time to read your

jurisdictional requirements for your attorneys, this keeps the rules fresh and

allows you to opportunity spot (especially when new rules may have come out)

o Example – the Florida bar started posting free CLE credits for its

members to watch online; I took this info and synthesized it into my online

menu for my attorneys

o It also pays to stay in touch with compliance staff; it is not uncommon to

have compliance rules not match the ‘practice’ of the staff/jurisdiction (in

these cases – I always recommend getting it in writing)

o Another helpful idea is using the compliance tools as a prod for certain

attorney behavior (example: in Georgia, compliance deadline is March 31st

every year so, “come to this program in February to get any last credits

you need to comply…”; in Florida, 5 ethics credits required so, “come to

this program pre-approved with 1.0 FL Bar CLE Ethics credit”)

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Philosophy One: Active Support of the Attorney’s Compliance (Record, Track,

Monitor, Remind)

Remarks Prepared by Betsy Hults

Definition: The CLE Department is responsible for tracking the compliance for lawyers

and legal assistants, including recording, tracking, monitoring and reminding. The

department also answers any and all questions related to CLE and does the required

research and investigation to answer those questions.

I have worked with the development of in-house training programs for Jones, Day for

many years but just joined the CLE Department in September of 2010. Dottie Palazzo,

who is in the audience, established the department in 1989 and knows all there is to

know about the Jones Day CLE Department. Between the two of us, we should be able

to answer any questions you may have about the philosophy of active support.

Staffing: Roger’s statistics show that NALP estimates a 1-50/75 ratio for typical PD

staff to attorneys. Jones Day currently has 2491 lawyers and 210 legal assistants

firmwide, with 15 US offices and 20 non-US offices. Of those 2700 lawyers and

paralegals, approximately 2000 have a CLE requirement, thus 80% have a need for the

CLE department. We currently have 4 full-time and 1 part-time employees in our

department. Given those numbers, our ratio for those who need our help is 1-445!

Fortunately, we do have a contact in each office who helps us locally.

Database: Because we actively support our Firm lawyers with their CLE and Training

needs, we have developed an in-house database that is sophisticated, complex and

customized to suit our needs. We have an in-house database developer who, along

with Dottie and members of our staff, has been involved in creating the database from

the beginning and implements changes on a regular basis. Changes in state rules and

regulations, in addition to new technology that will help our department better serve our

lawyers, makes this the most dynamic database that he works on within the Firm.

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Jurisdictions: We have offices in California, Georgia, Illinois, Massachusetts, New

York, Ohio, Pennsylvania, Texas and the District of Columbia. In addition, we have

numerous lawyers who practice in New Jersey and Maryland, not to mention some

licensed in every MCLE state in the country. The non-U.S. offices include London,

Paris, Hong Kong and many other countries that have CLE requirements. Also, many

lawyers in our international offices are admitted in US jurisdictions.

Cultural: Jones Day, with regard to all administrative functions throughout the Firm, has

always held to the premise that we should actively support the lawyer in all things

administrative so that the lawyer can be “freed up” to practice law. Both Dottie and I

have been with the Firm for many years and have acted in both legal assistant and

administrative capacities. Across the board, when it comes to all lawyer support

positions within the Firm, that mindset holds true.

Professionalism: Like Roger, our Firm also prides itself on the quality and

professionalism of its attorneys, and the responsibility for CLE compliance ultimately lies

with the attorney. But, those attorneys do rely on the CLE Department to record, track,

monitor, and remind them of their CLE obligations.

Main Pros of Active Philosophy:

The CLE Department has more “control” and knowledge of the attorneys’ CLE

status.

The ability/opportunity to avoid inadvertent non-compliance, loss of license, etc.

Maximize lawyer credits because of familiarity with categories of credit or

possible sources of credit.

Opportunity to maximize state approvals sought for all programs.

You can be as proactive as possible, knowing you can never do “too much” in

supporting the lawyers and their CLE compliance.

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Main Cons of Active Philosophy:

A tremendous amount of demand on limited staff and resources.

If an attorney is out of compliance, they can criticize the department for not

making sure they avoid the problem in the first place.

Attorneys rely on our department for reminders and aren’t always aware of their

compliance. Although it is their ultimate responsibility to be in compliance, we

must be more diligent, consistent, and proactive in our jobs.

Best Practices of the Active Philosophy:

Everyone in our CLE Department must be clear on all of our responsibilities with

regard to recording, tracking, monitoring and reminding. We must have

consistent and regular systems in place to make sure we keep the lawyers as

informed as possible.

Regularly update the database with all current information for each attorney,

program and jurisdiction so that we are working with accurate and current

information.

Send compliance notices to all attorneys on a regular basis, making sure they

are informed of deadlines in their jurisdictions and their individual status in each

jurisdiction.

Monitor and record carryover credit.

Calculate and notify newly-admitted lawyers of their bridge the gap requirements

as well as exemptions, prorations and other special provisions applicable to

them.

Informing all new lawyers, both lateral and law school additions, of our Firm’s

practices and procedures with regard to CLE.

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Communication designed for attorney’s assistants only, with FAQ section,

educating them on ways they can assist the attorney for whom they work and the

CLE Department (good idea, Roger).

Emergency Kit: Plan for worst case compliance scenario where you can immediately

offer an attorney all the credits they need to comply with their CLE requirements both in

a live and online format.

Pre-paid contracts with various vendors that allow our attorneys to access

programs immediately without additional cost to the Firm.

Resources in each jurisdiction for live programs on short notice, when necessary.

Know the rules for each jurisdiction and be prepared to work with attorneys in last

minute situations to maximize the credits that they have completed i.e. take

advantage of recognized jurisdictions, reciprocity, exemptions, grace periods,

extention procedures, etc.

Positive Spin: The active system is probably viewed most positively by attorneys but

can be difficult for the CLE Department staff. Ways to help members of the department

deal with the active system:

Automate the recording, tracking, monitoring and reminding systems as much as

possible.

Utilize a sophisticated database to assist you with automation, short cuts, etc.

Even though our approach is active, when possible educate the attorneys to be

more proactive in meeting their own compliance deadlines.

Educate Yourself: Just like the passive system, take the time to learn jurisdictional

requirements, read about changes in those requirements and update the database with

those changes. The more available current information is to the members of your

department, the more likely they can support the lawyers in a consistent and seamless

fashion.

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Betsy Hults is Firm CLE and Lawyer Training Manager for Jones Day, resident in the

Atlanta office. The views set forth herein are the personal views of the author and do

not necessarily reflect those of the law firm with which she is associated.