Wednesday, April 29, 2020
Court of Appeal:
First District Rejects Position of State Bar, Arrived at in 1992, That Such Lawyers Are Not Entitled To Exception Made in Business & Professions Code for Lawyers Employed by the State
By a MetNews Staff Writer
Superior Court research attorneys are state employees, exempt from minimum continuing legal education requirements, the First District Court of Appeal held yesterday, rejecting the contrary position of the State Bar.
Justice Gordon B. Burns of Div. Five wrote the opinion. It affirms a San Francisco Superior Court judgment granting Alameda Superior Court research attorney Philip B. Obbard a writ of mandate ordering the State Bar to recognize the MCLE exemption for lawyers who work for trial courts.
At issue was the meaning of Business & Professions Code §6070(c) which says that “[f]ull-time employees of the State of California, acting within the scope of their employment, shall be exempt” from MCLE requirements. Superior court research attorneys, the State Bar argued, work for superior courts, not for the state.
Rejecting that stance, Burns said:
“The principal common law test of an employment relationship is whether the employer has the right to supervise and control the work and to discharge the worker….Thus, the question is whether the State of California supervises and controls the work of superior court research attorneys. It does.
“The presiding judge of each superior court is a state officer…, who controls the hiring, firing, and supervision of superior court employees, or delegates those duties to the court’s executive officer….The superior court is part of the state judicial branch…, administered by the state Judicial Council…, and funded through the state budget process….Obbard’s salary is part of the superior court’s operations costs, for which the state is responsible….Obbard is indeed a state employee.”
The jurist continued:
“This interpretation is consistent with the rationale for the state employee exemption from the mandatory continuing legal education program. The continuing education requirement is intended to protect consumers, i.e., attorneys’ clients….The exemption applies to categories of attorneys that generally do not represent clients…, which, as the trial court noted, applies equally to research attorneys for the Supreme Court, the courts of appeal, and the superior court.”
“The State Bar is determined to make the issue more complicated than necessary. None of its arguments has merit.”
Burns agreed with the State Bar that Obbard works for a superior court. However, he pointed out:
“Obbard is a superior court employee and a state employee. This poses no contradiction. All state employees work for specific agencies, departments, boards, courts, or other units of state government.”
MCLE for lawyers is required by legislation enacted in 1989. Burns noted that in 1992, when the program came to be implemented, two State Bar employees informally determined that the state-employee exemption does not apply to research attorneys, and that position has been adhered to without any official promulgation of a policy.
He said in a footnote:
“Our decision does not mean that superior court research attorneys are no longer required to participate in a continuing legal education program. As Obbard concedes, they remain subject to the judicial branch’s mandatory continuing education program.”
Under that program, continuing education is required for judicial officers and court employees. California Rules of Court, rule 10-474, prescribes at least eight hours of education every two years for court attorneys—contrasted with the 25 hours every three years mandated under the State Bar MCLE program.
State Bar’s Warning
The State Bar has posted on its website what it terms an “[i]mportant notice concerning appellate litigation involving the issue whether superior court attorneys are required to comply with minimum continuing legal education requirements.”
“On July 23, 2018, the State Bar filed Notice of Appeal of the San Francisco Superior Court’s July 11, 2018 judgment. It is the State Bar’s position that the Court’s judgment is stayed pending resolution of the appeal, and, accordingly, Superior Court attorneys employed remain presently obligated to fulfill their MCLE obligations. This is to advise that the State Bar will not take administrative action at this time against any Superior Court attorney for their [sic] failure to certify fulfillment of MCLE obligations. If, however, the July 11, 2018 judgment is overturned by the Court of Appeal, the State Bar reserves its rights to take any and all actions necessary related to the fulfillment of Superior Court attorneys MCLE obligations — past, present and future.”
Affirmance of the judgment against the State Bar comes in Obbard v. State Bar of California, A155106.
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