Hot off the presses, the Tennessee Supreme Court has responded to the Tennessee Commission on Continuing Legal Education and Specialization’s Petition to revise Tennessee Supreme Court Rule 21, which regulates the provision of, participation in, and monitoring of CLE courses and credits. The Supreme Court’s Order, issued Dec. 16, 2014, adopted many of the Commission’s proposed rule changes but also took into consideration the numerous public comments that were filed by practitioners, bar organizations, and law schools.
In case you missed the Supreme Court’s Opinion (and who didn’t), here are the Cliff’s Notes of the most relevant rule changes that took effect Jan. 1, 2015:
Age exemption for attorneys over age 65 – If you attained the age of 65 on or before Dec. 31, 2014, you do not need to obtain CLE credits ever again (Rule 21, § 2.04(c)). Not to burst your bubble, but the Rules of Professional Responsibility still might require that you do. Also, this exemption does not apply to Rule 31 mediators. See Rule 31.
Age exemption for attorneys under age 65 – If you were under age 65 as of Jan. 1, 2015, you are now required to obtain CLE credit until you attain age 70 (Rule 21, § 2.04(c)). The exemption is available in the year after the year in which you turn 70. It could be worse; the Commission petitioned the Court to require CLE for as long as you practiced law!
Law professors – Full-time law school professors who are not practicing law do not need to obtain CLE credits (Rule 21, § 2.04(e)). Query: how much free legal advice can a law professor give before he or she is “practicing law?” See Rule 9, § 10.3.
In-classroom credit hours – You now have to obtain a minimum of five in-classroom hours of CLE per year (Rule 21, § 3.01). Therefore, if in the past you have obtained all of your CLE credits through writing, teaching, or pro bono services, for example, you will now have to obtain at least five credits of CLE through classroom hours. But, if a disability prevents you from obtaining those five hours, you can petition the Commission for “Exceptional Relief” from this requirement (Rule 21, § 3.02). But, keep in mind that you still must have at least seven non-”distance learning” hours each year (Rule 21, § 4.08).
Teaching law-related courses – You can earn four hours of CLE credit for each hour of academic credit awarded for a “law-related” class taught at a law school, college, university, or community college (Rule 21, § 4.03). If you want to earn even more CLE credit, however, audit a law school class and receive one credit for each hour of class attendance (Rule 21, § 4.04). So, teaching a three-credit law-related course will get you 12 hours of CLE credit (three credits times four hours). Audit a three-credit law-related course for an entire semester (13 classes at three hours each class) and earn 39 credits!
Published writings – You can now only obtain up to half of your annual CLE credits (six general hours and 1.5 ethics hours) for published writings “concerning substantive law, the practice of law, or the ethical and professional responsibilities of attorneys, if the writing is published in approved publications intended primarily for attorneys. Credit shall be awarded in the amount of one hour for every 1,000 words” (which just happens to be the length of this article with this parenthetical) (Rule 21, § 4.07(b)). Previously, you could earn all 15 CLE credits for published writings.
Pro bono – You can now get dual (meaning either general or E/P) hours of CLE credit earned at the rate of one hour of credit for every five billable hours of pro bono legal representation (Rule 21, § 4.07(c)). Provide the recommended 50 hours of pro bono services each year and obtain 10 CLE credits; the other five credits will need to be “in-classroom.” See Rule 21, § 3.01, supra.
Out-of-state CLE courses – If you attend a CLE course outside of Tennessee (that is provided by an out-of-state provider) and the course has not been approved by the Commission for CLE credit, you can attempt to obtain CLE credit by submitting “a detailed agenda and speaker biographies” to the Commission (Rule 21, § 5.05(d)).
In-state CLE courses – If, however, you attend a CLE course in Tennessee (that is provided by an out-of-state provider) and the course has not been approved by the Commission for CLE credit, there is no mechanism to obtain CLE credit. So, make sure the CLE course offered in Tennessee has been approved for CLE credit before you sign up. If a course has been pre-approved, all advertising material should state, “This course has been approved by the Tennessee Commission on Continuing Legal Education for a maximum of __ hours of credit” (Rule 21, § 5.06).
If the course has not been approved by the Commission for CLE credit, all advertisements should state: “This program is not accredited in Tennessee”; “We intend to seek accreditation for this program in Tennessee”; or, “This program is not being submitted for accreditation in Tennessee” (Rule 5.06(b)(1-3)).
The Commission has no effective means to enforce this rule, however, as it lacks the means to “punish” out-of-state providers who do not comply. Therefore, forewarned is forearmed.
Specialists – The Commission will no longer be certifying specialists. Instead, the Commission will keep a “Roll of Certified Specialists” on its website. If you are a Certified Specialist, your certification may still be used for marketing purposes, but you will need to change your marketing materials and (probably) your letterhead (Rule 21, § 11.03). For more information, contact the Commission, as the particulars of the change regarding specialization are beyond the scope of this article.
Rachel Hurt is a Knoxville attorney and a member of the CLE Commission. This article does not include comments on all Rule changes. Also, changes to Tennessee Supreme Court Rule 21 that take effect January 2016 are not included in this article.