MCLE Commission Proposes Elimination of Age Exemption
By Jack L. Brown
The requirements Oklahoma lawyers must fulfill in order to remain active members in good standing are often the subject of great discussion. Among those requirements is the satisfactory completion of mandatory continuing legal education (MCLE) each year. In the last several years, the MCLE Commission has engaged in an examination of the MCLE structure in regard to the elimination of MCLE Rule 2(d), among other rules. Rule 2(d) exempts an attorney who attains the age of 65 years before or during the calendar year that is being reported from all requirements of the MCLE rules.
Mandatory continuing legal education was first mandated in 1986 by the Oklahoma Su-preme Court. At that time, many lawyers were retiring from practice at the age of 65. Lawyers today, along with the general population, are working well past 65 years of age. The National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers appointed a joint committee on aging lawyers in August 2005 to study the challenges raised by aging lawyers. Its final report in 2007 states that “in the next decade the number of lawyers continuing to practice beyond the traditional age of retirement is likely to increase dramatically.” The reasons given by the committee for the increase are:
- The steady increase in the past 50 years in the number of lawyers admitted to practice each year;
- The demographic shift in the elderly population. The shift is based upon the estimated number of adults over 65 in the U.S. will double in 25 years, from 35 million to 70 million. In addition, the proportion of elder adults will increase from about 13 percent to 20 percent of the total population;
- The dramatic improvements in healthcare, which have extended professional work lives;
- The strong desire among many senior lawyers to continue making positive contributions to society; and
- The economic necessity, which will compel lawyers to continue working because their pensions or savings are insufficient to support themselves and their families.
In addition, the U.S. Census Bureau says the rate of participation of people 65 and older in the workforce increased from 12.1 percent in 1990 to 16.1 percent in 2010 — and increased again to 16.2 percent in 2011. Surveys show a growing number of workers 40 and over are also planning to work beyond retirement age.
The committee’s data is supported by the OBA membership graph. The graph evidences that almost half of the OBA membership is currently between the age of 50 and 69. Within a few years, this group will not be required to complete any CLE credit.
The next graph reflects the CLE credit for active OBA members age 65 and over. This graph evidences that the majority of 65 and older Oklahoma lawyers are not earning any CLE credit.
The MCLE proposal to eliminate the age 65 exemption from MCLE requirements encourages all active OBA members, regardless of age to stay current on changes in the law and maintain competent practice skills. Further, the rule change will assist the OBA’s long-term goal of providing the best legal services to the people of Oklahoma. MCLE requirements provide public protection and should be in place for all active OBA practitioners, regardless of age. An exemption for an OBA member of any age who can report that he or she did nothing during the calendar year that would be considered practicing law in Oklahoma will remain a part of the MCLE rules and is unaffected by the proposal.
Below is the MCLE draft resolution that will be submitted to the Board of Governors, and eventually the House of Delegates, this year for consideration and deliberation. The MCLE Commission is requesting written comments from OBA members beginning May 20 through June 20, 2013. All comments to the proposed rule change should be emailed to email@example.com. Comments may also be submitted by letter to the MCLE Commission at the OBA, P.O. Box 53036, Oklahoma City, OK 73152.
BE IT RESOLVED that the OBA recommends to the Oklahoma Supreme Court to amend Rule 2 of the Oklahoma MCLE Rules as follows:
(a) Effective January 1, 2015, except as provided herein, these rules shall apply to every active and senior member of the Oklahoma Bar Association as defined by Article II of the Rules Creating and Controlling the Oklahoma Bar Association.
(d) An attorney who attains the age of sixty-five (65) years of age before or during the calendar year which is being reported is exempt from all requirements of these rules except as provided in Rule 5. An attorney having been granted an exemption based on attaining age 65 prior to January 1, 2015 shall be granted a continuing exemption.
Originally published in the Oklahoma Bar Journal -- May 18, 2013 -- Vol. 84, No. 14