MCLE OPINION #1 - WAIVERS

The board will not grant a waiver of the MCLE requirements based on representations that a medical condition makes attendance only difficult or "uncomfortable." In conjunction, the board will be disinclined to grant such a waiver to the extent a member is still engaged in the active practice of law. [Paragraph 17E(2) of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulations 110C].
7/28/86

MCLE OPINION #2 - WAIVERS

The board will not grant a waiver of the MCLE requirements based on representations only that a member is outside the United States. A member must show that there are no approvable courses (live or recorded) available and that it is impossible for the member to travel to a place where courses are available. [Paragraph 17E(2) of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulation 110C].
7/28/86

MCLE OPINION #3 - WAIVERS

The board will not grant a waiver of the MCLE requirements based on combined representations of the following:

1. The member finds it "most difficult" to find the time and money to attend CLE; and
2. The member observes other attorneys in practice which the member believes should substitute for CLE courses.

[Paragraph 17E(2) of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulation 110C].
7/28/86

MCLE OPINION #5 - WAIVERS

The board will not grant a waiver of the Mandatory CLE requirements on the representations that a regularly admitted member practices patent, trademark and copyright law exclusively in federal court. Only those members admitted solely for practice in patent, trademark, copyright and unfair competition law under Virginia Code ¤ 54-42.1(2a) are exempt. [Paragraphs 17C(1) and 17E(3) of Section IV, Part Six, of the Virginia Supreme Court and MCLE Board Regulation and 101 and 110(b)].
9/8/86

MCLE OPINION #6 - WAIVERS

The board will not grant a waiver of the Mandatory CLE requirements based on a representation only that a member is in advanced years (85). [Paragraph 17E(2) of Section IV, Part Six, Rules of the Virginia Supreme Court and MCLE Board Regulation 110(c)].
9/8/86

MCLE OPINION #7 - WAIVERS

The board will not grant a waiver of the Mandatory CLE requirements based on the representation only that a member is out-of-state and does not plan to practice in Virginia. An active member in this situation could become an associate member. [Paragraphs 17E(2) and 3(a) and (b), of Section IV, Part Six, Rules of the Virginia Supreme Court and the MCLE Regulations 101(c) and 110(c)].
9/8/86

MCLE OPINION #4 - COURSE APPROVAL

The board is without authority under the MCLE Rule to approve courses or portions of courses which were held before July 1, 1986. [Paragraph 17C of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulation 101(1)].
7/28/86

MCLE OPINION #9 - COURSE APPROVAL

The board will not approve for MCLE credit activity that essentially is law reform or other public interest work. Such work includes that done by such elected bodies as the General Assembly, work done by such appointed boards as the National Conference of Commissioners on Uniform State Laws or the Virginia Code Commission, and work done by such voluntary groups as the Virginia State Bar sections where law reform or need for redrafting or enacting new legislation is the topic. Work done by such groups either voluntarily or because of acceptance of an appointment, has educational value, as does many other kinds of work. Such work, however, is not the kind in continuing legal study contemplated, or CLE courses or programs required, by the MCLE Program established by the Virginia Supreme Court. [Paragraphs 17.C and 17.G of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulations 101(g), and 103].
10/15/86

MCLE OPINION #10 - COURSE APPROVAL

Regulation 103(b) and (c) require that courses to be approved must have "significant intellectual or practical content," a "primary objective" of increasing "professional competence and skills as an attorney" and "pertain to a recognized legal subject or other subject matter which integrally relates to the practice of law, or to the professional responsibility or ethical obligations of the participants." The board has encountered instances where it has received applications for course approval of subjects which are not law related, for example, courses involving engineering, accounting or construction to name a few. These course applications have been received by various sponsoring organizations as well as Virginia State Bar members who attended such courses and subsequently sought approval.

When such course applications are received from a sponsoring organization, the board has no alternative in determining whether the course is beneficial for practicing attorneys except to apply an objective standard. Consequently, the course will not be approved unless it obviously pertains to a recognized legal subject or to the practice of law. Likewise, credit for teaching will be given only where the course pertains to the practice of law. Additionally, where a Virginia State Bar member teaches at a course which does not objectively pertain to the practice of law, credit for teaching, see Regulation 102(d), will not be given. However, where an application for course approval is received from a Virginia State Bar member, and the course does not pertain to a recognized legal subject, the board will give great weight to the obvious subjective determination of the member that the subject matter enhances his professional responsibility. For example, the member may have a product liability case where an engineering course would be very helpful.

The board recognizes that application of its rules in this manner may create an inconsistency - a Virginia State Bar member receiving credit for attendance at a course for which the sponsoring organization failed to receive approval. It is felt, however, that this manner of approval ensures that course sponsors will structure their programs to fully enhance the practice of law, while individual members are allowed wide flexibility in attending for credit courses unique to their practice needs.
6/19/87

No course will be approved for self-study. Audio or video tapes by themselves cannot be approved for MCLE credit. A presentation using tapes can be approved for credit if it meets all of the requirements for an approved course as defined in the MCLE Regulations.

In addition to course content, the MCLE Rules and Regulations also require assurances that a program will be presented in an educational atmosphere, that high quality written materials will be given to each attendee, and that the program will be presented in a group setting (two or more attorneys) conducive to discussion and exchange of ideas.

Logically, those assurances cannot be given until a particular, actual presentation of a course is contemplated. Thus, taped material can constitute the total content of a course which can then be approved for MCLE when the additional requirements mentioned above are met. [Paragraphs 17H of Section IV, Part Six, Rules of the Virginia Supreme Court and the MCLE Regulation 103].
10/15/86

Opinion #10 provides that when an application for course approval is submitted by a sponsoring organization, the course is judged by an objective standard and will not be approved unless it obviously pertains to a recognized legal subject, or other subject matter which integrally relates to the practice of law or to the professional responsibility or ethical obligations of the participants.

Opinion #10 further provides that when an application for course approval is submitted by a Virginia State Bar member, and the course does not pertain to a recognized legal subject, the board will give great weight to the obvious subjective determination of the member that the subject matter enhances his or legal responsibilities. In such cases, the decision by the board will be made on a case by case basis.

Regulation 104 permits either an active member or a sponsor to request approval of a course. When an application by a sponsor for course approval has been approved any active member who attends the course and otherwise complies with the MCLE regulations is entitled to receive credit. Accordingly, Regulation 104 permits the sponsor of an approved course to advertise course approval. However, when an application by a member for course approval has been approved, it does not mean that every member who takes the course will receive credit because the board must review each application and make its determination in accordance with the principles of the regulations and Opinion #10. Therefore, it would be misleading to other active members to permit a sponsoring organization to advertise that a course has been approved for MCLE credit when the approval has been given to an application submitted by an active members. For these reasons a sponsoring organization may only advertise that a particular course has been approved when it has submitted an application for that course which has been approved.
3/13/89

Supreme Court Rules and Regulations of the Board allow “a one year carryover of credit hours..., so that accrued credit hours in excess of one year's requirement may be carried forward from one year to meet the requirement for the next year. A member may carry forward a maximum of twelve (12) credit hours, two (2) of which, if earned in the area of legal ethics or professionalism, may be counted toward the two (2) hours required in legal ethics or professionalism.” The Board will allow carryover only from one period to the next. It will not allow CLE credits from two years back to be carried forward. To do so would not only be inconsistent with the language of the Rule but would defeat the purpose of continuing legal education - to enhance professional skills with current updates.

On the end of year report attorneys should claim credit for all courses attended. This will ensure that they meet the required twelve (12) credit hours of CLE, two (2) of which in the area of legal ethics or professionalism and are entitled to all earned carryover credits. If such carryover credits are not claimed they may, nonetheless, still be claimed in the next reporting period with the payment of a late filing fee. Consistent with the application of the rules, however, such credits may not be claimed except from the immediately preceding reporting period. Nor will the Board, consistent with the Rules and Regulations, allow a late amendment to any reporting period, other than the immediately preceding period.

[Paragraph 17C(2) of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulation 102(e)].
9/11/89
Amended Effective 11/1/2002

The Virginia Supreme Court has required by Rule of Court that each active member of the Virginia State Bar complete a certain minimum amount of continuing legal education "in the area of legal ethics or professionalism." MCLE Regulations provide that an approved course or program may provide credit toward this requirement by addressing "topics embraced in recognized formulations of rules of professional conduct or codes of professional responsibility applicable to attorneys." The board has encountered instances where it has received applications for approval of ethics credits for topics which do not objectively pertain to or specifically address rules of professional conduct or codes of professional responsibility specifically applicable to attorneys.

The following are examples of some of the topics and types of courses which DO NOT qualify for ethics credits:

Ethics in Government Programs or components which, although presented to attorneys, focus on standards of conduct applicable to non-attorney employees including those dealing with:

1. the ethical standards applicable to governmental employees, federal legislators, governmental contractors;
2. United States' employees' compliance with the President's Executive Order requiring a standard of conduct higher than the bare ethical rules might require;
3. educating the government attorney in these standards to enable that attorney to better advise a legislative and/or executive branch client on the applicable standards.

Medical Ethics Programs or components which, although presented to lawyers, focus on:

1. an analysis or the application of medical ethics, "bioethics," or "biomedical" ethics;
2. statutory options involving "living wills," the right to die, and "informed consent";
3. educating the lawyer in these subjects to enable that lawyer to better advise a client.

Ethics of other Professions Programs or components which although presented to lawyers, focus on:

1. an analysis or the application of ethical standards governing members of a profession other than the legal profession, e.g. ethics for museum administrators, accountants, realtors, architects, engineers, chemists, etc.;
2. educating the lawyer in these standards to enable that lawyer to better advise a client on the applicable standards.

Business or Corporate Ethics Programs or components which, although presented to lawyers, focus on:

1. an analysis or the application of ethical standards appropriate for executives, corporate officers and employees;
2. educating the lawyer in these standards to enable that lawyer to better advise a client on the applicable standards.

Rules of Procedure, Rules of Evidence and Litigation Tactics Programs or components which focus on rules of procedure or rules of evidence, unless the focus of the programs or components also provides a substantial treatment of applicable rules of professional conduct or codes of professional responsibility. In particular, malpractice prevention programs or components which focus primarily on malpractice litigation, tactics, or strategy will not be approved for ethics credit.

Programs or components devoted to or including these topics may meet the requirements for general MCLE credit. The board is of the opinion that such topics do not fulfill the requirement for continuing legal education in the area of legal ethics or professionalism. The board will therefore not assign ethics credits to such topics.

[Paragraph 17.C.(1) of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulations 101(q), 101(r) and 103(d)]. (12/92)
Amended effective 7/1/07
Amended effective 11/1/09

The Supreme Court of Virginia has required by Rule of Court that courses or programs qualifying for MCLE credit must provide attendees with written educational materials which reflect a thorough preparation by the provider of the course and which assist course participants in improving their legal competence. Paragraph 17(H)(3) of Section IV, Part Six, Rules of the Supreme Court of Virginia. In compliance with this mandate, the MCLE Board has promulgated Regulation 103(g). That provision provides:

Thorough, high quality instructional materials which appropriately cover the subject matter must be distributed to all attendees at or before the time the course is presented. A mere agenda or topical outline will not be sufficient.

Although courses of shorter duration may require less lengthy materials, this requirement must be satisfied by courses of any length in order for MCLE credit to be granted.

The purpose of the requirement of written materials is fourfold. First, it ensures thorough course preparation by the provider. Second, it minimizes the need for attendees to take extensive notes, whether written or electronic, during the presentation thereby allowing attendees to focus their attention on the presentation. Third, it ensures that the attendees will be provided with materials that are useful after the course is completed. Materials provided should be sufficient to assist the attendee when questions regarding the particular subject matter covered are raised at a later date and to serve as a general resource after course completion. The fourth reason for this requirement is to allow the MCLE Board to evaluate the quality and nature of the course and the actual subject matter being covered. Occasionally neither the title of the course submitted on an application nor the agenda for the presentation provides sufficient information about course content to allow evaluation. The review of the written materials provided to course attendees allows the Board to assess the quality and subject matter of the course and ensures that the topics addressed are appropriate for accreditation purposes.

The phrase “[t]horough, high quality instructional written materials which appropriately cover the subject matter” as used in Regulation 103 means current and up-to-date materials that directly, concisely, and adequately cover the subject matter in such a way as to effectively and thoroughly instruct attendees on the topics covered during the program and assist course participants in improving their legal competence. These materials can include, by way of example and not limitation, the following:

1. Materials prepared specifically for the course; or
2. A book, chapter of a book, article, or other writing directly on point to the presentation.

Distribution of primary sources, such as statutes, regulations, cases, briefs, pleadings, or motions may supplement thorough, high quality instructional written materials; however, such primary sources alone are not adequate to satisfy the written materials requirement. Similarly, compilations of articles and informational resources may also supplement thorough, high quality instructions materials; however, such compilations alone, which require the attendee to research through the documentation in order to discern, ascertain or search for, the information conveyed during the program, will not satisfy the written materials requirement.

In determining whether written materials are adequate, the Board will also consider the teaching method employed. For example, materials appropriate to participatory skills development courses, such as a trial advocacy course, will differ from a course where a straight lecture method is employed. Moreover, courses in which role‑playing or other interactive teaching methods are employed will have varied materials. However, in all such cases, high quality instructional materials must be provided.

The following recurring issues regarding the provision of instructional materials have come to the Board's attention:

1. Presentation Slides: Presentation slides, such as PowerPoints, will satisfy the requirement for high quality written materials so long as the other requirements set forth in this opinion have been met. To be considered as written materials, an electronic or paper copy of the presentation slides must be distributed to the individual attendees at or before the presentation. Presentation slides which were not distributed to attendees at or before the presentation will not be considered when evaluating instructional materials.
2. Hypotheticals: Written materials which contain only hypotheticals will not satisfy this requirement. While the discussion of hypotheticals can be an appropriate teaching method, written materials including only hypotheticals to be discussed will not suffice as thorough, high quality instructional material. On the other hand written materials in which the hypotheticals are accompanied by (1) course materials which assist the understanding of the subject matter and have reference value to the participants or (2) course materials which provide a thorough written discussion and/or responses to such hypotheticals may satisfy this requirement. Such written discussion or responses to hypotheticals may be provided to the participants separately at any time up to the time of the conclusion of the course.
3. Lists of Reference Materials: Bibliographies or a list of other reference materials, such as internet sites, standing alone, will not suffice as thorough, high quality instructional material.
4. Late Materials: Instructional materials provided after the course do not comply with Virginia’s MCLE requirement.

The written materials requirement must be satisfied for each segment of a program. For any segment not meeting the written materials requirement, no credit will be granted. The requirement to distribute written materials can be satisfied by providing printed copies or copies stored on electronic media. It may also be satisfied by allowing attendees access to a web-site or other area where electronic copies are available for downloading. To ensure easy access and identification by the attendee and the MCLE Board as they relate to the course agenda, instructional materials (whether in written or electronic format) must be readable, and user friendly. For example, a linear PDF file of documents without bookmarks to identify the agenda segment to which they apply would not be acceptable.

[Paragraph 17(H)(3) of Section IV, Part Six, Rules of the Supreme Court of Virginia; MCLE Regulation 103(g)].
Effective 07/01/95
Revised 02/11/02
Revised 8/15/13 to change reference to MCLE Regulation 103(f) to 103(g).
Revised 8/21/17

The MCLE Board has observed an increasing trend in the number of courses and programs submitted for accreditation by program sponsors who sell or provide certain products or services. Such courses and programs (hereinafter referred to as "Vendor Programs") will be subject to close scrutiny by the Board to insure that the primary objective of the Vendor Program is to increase the attendees' professional competence and skills as an attorney and to improve the quality of legal services rendered to the public, as opposed to selling a product or service. Vendor Programs addressing the use of hardware, software, other equipment and tools, or procedures that are specific products or services of a particular company or person will not be accredited unless such Vendor Programs otherwise meet the requirements of the Rules of Court, the Mandatory Continuing Legal Education Regulations, and the Opinions of this Board.

In determining whether the Vendor Program will be accredited, consideration will be given to the following factors:

1. Whether the course pertains to a recognized legal subject or other subject matter which integrally relates to the practice of law or the professional responsibility or ethical obligations of the participants. For example, while training in the use of a computer program to perform legal research may be accredited, training in the use of a word processing program will not be.
2. Whether the Vendor Program is presented immediately before, during, or immediately after a sales presentation.
3. Whether the Vendor Program is presented before the attendee has purchased a particular product or service. If so, accreditation will be denied unless the course sponsor can demonstrate that the product or service presented during the Vendor Program is merely being used to explain the concept being taught. With regard to this particular factor, the Board is particularly concerned about unwarranted CLE credits in situations where a lawyer, in the process of deciding which product to purchase, invites three (3) suppliers to give presentations, when in the end, the attendee will only purchase one product. Under such circumstances, from the standpoint of the public interest and the intent of the MCLE Regulations, the attendee has truly received no educational benefit with regard to training about products which he or she will not be using in the future.
4. Whether the personnel presenting the Vendor Program are the same personnel who actually sell the product or service.
5. Whether the following issues are discussed during the Vendor Program: prices, price comparisons, quality of the product or service, quality of competitors' products or services, payment or financing terms, or similar matters.
6. Whether the target audience for the program is attorneys and, if so, whether the Vendor Program is open to all attorneys or solely to attorneys of a particular firm.
7. The MCLE Board will weigh the factors above to determine whether the Vendor Program should be accredited. The burden of demonstrating that a Vendor Program qualifies for accreditation shall be upon the Vendor Program sponsor or the individual attendee seeking accreditation.
8. In no event will a Vendor Program be approved if the Board determines that the program includes elements of a sales presentation.

[Paragraph 17(H)(1) of Section IV, Part 6, Rules of the Supreme Court of Virginia; MCLE Regulations 101(h), 103(b), 103(c)]
Updated: Jul 27, 2006

The purpose of this opinion is to provide guidance for the application of the MCLE Regulation 101(v) (A Course Presented by Distance Learning Methods) to courses presented live remotely or presented non-live remotely. Courses presented remotely must meet the following requirements:

Live Remote CLE Courses

1. Live remote CLE courses are programs where CLE faculty is not in the same location with course attendees.
2. Live remote CLE courses must afford live simultaneous interaction between the attendees and the presenter with respect to the subject matter of the course.
3. For purposes of this opinion “simultaneous live interaction: means the opportunity for real-time synchronous communication between and among the presenter and attendees.
4. Simultaneous live interaction may be accomplished by any form of live interaction, including, but not limited to, telephonic communication systems, simulcast, internet discussion groups, web meetings, or the use of other technology that facilitates active discussion or interaction
5. All live remote CLE courses must include high quality written instructional materials.
6. Live remote CLE courses utilizing technology-based learning systems without simultaneous live interaction features do not qualify as live remote CLE programs; however, they may qualify as non-live remote CLE programs.
7. A live remote CLE course is not a “pre-recorded course or non-live CLE course” and is thereby allowable for any portion of the minimum of twelve (12) credit hours of approved CLE as provided in MCLE Regulation 102.

Non-Live Remote CLE Courses

1. Non-live remote CLE courses are programs where a live presentation has been recorded and presented via any electronic media (e.g. videotaped, DVD or CD-ROM presentations, audiotaped or CD presentations, pre-recorded telephone seminars, technology-based learning systems, webcasts or on-demand online courses, etc.) that do not include simultaneous live interaction with the presenter as defined in MCLE Regulation 101(j).
2. A non-live remote CLE course is considered a “pre-recorded course or non-live CLE course” and is thereby only allowable for eight (8) of the minimum of twelve (12) credit hours of approved CLE as provided in MCLE Regulation 102.
3. All non-live remote CLE courses must include high quality written instructional materials and must provide a means to access the presenter or subject matter expert for questions during or after the presentation.
4. Non-live remote CLE courses utilizing technology-based learning systems without simultaneous live interaction features may qualify as a pre-recorded or non-live remote CLE program provided it meets the requirements for CLE approval including Section II Paragraph 3 above.

CLE Course Providers

1. For purposes of this opinion, a presenter is either (a) the faculty member qualified by practical or academic experience to teach the subject taught during the CLE course or (b) the course content creator for a course provided via a technology-based learning system.
2. For the purposes of this opinion, a subject matter expert is a person qualified by practical or academic experience to facilitate discussion among the attendees and answer questions during or after the seminar regarding the subject matter of the CLE course.
3. A faculty member presenter or subject matter expert shall be available for no less than fifteen (15) minutes of the live remote CLE program for simultaneous, live interaction with the attendees.
4. The provider of a course which is delivered remotely must have a system that maintains an archival record which allows certification of attendance to be controlled by the provider, permits the provider to verify the date and time of attendance and does not rely solely on a representation made by the participating attendee. For example, for an internet delivered course, a system which identifies the log on and log off of an attendee and prevents inaccurate representations regarding attendance and participation may satisfy this requirement.
5. The provider of a course which is delivered remotely must effectively demonstrate the basis for awarding CLE credit hours by providing the length of the program. If a course is delivered via a technology-based learning system, the provider must provide a minimum typical participant completion rate.
6. A provider of a course which is delivered remotely where the presenter and the attendee are not simultaneously engaged in the course must clearly specify during its registration process when the last substantive revision of the course was made. Courses may not be approved for more than three (3) years after the date the course was originally recorded, except those courses determined by the Board to be substantively current.
7. Courses must be presented through audio or audiovisual means.
8. Course sponsors must provide the MCLE Board with free access to all CLE courses so that they may be reviewed for compliance with the MCLE regulations.
9. Without limitation, course accreditation may be terminated if the course sponsor is found to have failed to meet applicable MCLE regulations and the guidance provided by this opinion. Such findings may result in denial of approval to the sponsor for future distance learning programs.
10. The provider must furnish high quality written instructional materials in accordance with MCLE Board Opinion 14.

Attendees

1. The attendee must self-certify that any remote course was taken in a setting physically suitable to the course or program and that a suitable learning environment existed. To ensure compliance with MCLE Regulation 102(f), for any course delivered remotely where the presenter and the attendee are not simultaneously engaged in the course, the attendee must also self-certify that the course for which credit is sought is not substantially identical to a course for which the same member received credit during the same completion period or the completion period immediately prior to the one for which credit is sought.
2. The attendees must self-certify receipt of high quality written instructional materials made available electronically or provided in printed form.

[MCLE Regulations 103(h)]

Approved 6/22/98 Effective 7/1/98
Revised 12/10/01, Revised 10/21/03, Revised 10/25/2011
Revised 9/18/17

Regulation 103 provides that a course must have significant intellectual or practical content, and its primary objective must be to increase the attendee’s professional competence and skills as an attorney, and to improve the quality of legal services rendered to the public. Further, the course must pertain to a recognized legal subject or other subject matter which integrally relates to the practice of law or to the professional responsibility or ethical obligations of the participants.

The Board has encountered instances where it has received applications for approval of law practice management programs which do not appear to be intended to increase the attendee’s professional competence and skills as attorneys or improve the quality of legal services rendered to the public. Further, the Board has had concerns that some courses do not pertain to subject matter which integrally relates to the practice of law or to professional responsibility or ethical obligations of the attendees. The following are guidelines which will be applied in determining whether a law practice management program qualifies for CLE and/or ethics/professionalism credit:

1. The subject of the program must not be any individual law firm’s internal policies, practices and procedures. The term “law firm” or “law office” as used in this Opinion means a single private law firm, a single corporate law department or a single federal, state or local governmental agency or military branch for lawyers.
2. The management program must be specifically pertinent to, and focused on law firms, and not generally applicable to other business or professional enterprises.
3. If the focus of a law practice management program is on the application of the Virginia Rules of Professional Conduct to the operation of a law firm, then the program would be approved for ethics/professionalism credit subject to other requirements for such credit. Such program should present information on how to operate a law practice consistent with ethical fundamentals set forth in the Rules of Professional Conduct, and/or should provide information on how to deliver legal services and generally operate a law practice in a more professional manner than is required by the minimum standards set forth in the Rules of Professional Conduct.
4. An approvable program may include information about administrative, technological, or other systems and procedures designed to avoid errors in the practice of law or violations of the Rules of Professional Conduct.
5. The following are illustrative, non-exclusive examples of subject matter that may be approvable for CLE credit subject to compliance with CLE approval requirements: case management, tickler and docket control systems, conflict checking systems, law firm technology/software programs, legal research, client screening and intake practices, retainer agreements, withdrawal from representation, handling client files, handling trust accounts, supervision of subordinate attorneys and non-attorneys, communications with clients and others, time management for attorneys, proper use of computer technology in a manner consistent with the Rules of Professional Conduct including professional competence and confidentiality, closing a law practice and law office disaster planning.

Examples of some of the topics and types of courses which DO NOT qualify for CLE credits are:

1. Training by a law firm provided to associates or newly associated attorneys informing them of purely internal practices which are unique to that law firm and do not apply to the practice of law in general, including courses on such topics as how to use a particular firm’s accounting, timekeeping, or billing software.
2. Instruction about computer applications that are general in nature and that may apply equally to any other business or profession.
3. Treatment of law office employee compensation policies and evaluation for advancement.
4. Courses that teach or a segment that teaches client development methods and strategies.
5. The following are additional illustrative, non-exclusive examples of subject matter that are generally not approvable: business development, marketing, sales training, enhancing profits, firm budgeting, strategic business planning, performance ratings, cost cutting, improving cash reserves, credit card acceptance, selecting office space, employee morale and motivation, hiring and retention, outsourcing, personal budgets and financial planning, billing codes, collection practices, and creative/alternative fee structures. These topics are not generally approvable except to the extent the focus of the presentation is on the ethical or malpractice avoidance issues related to these topics which would allow for consideration of ethics/professionalism credit.

[Paragraph 17.H of Section IV, Part Six, Rules of the Supreme Court of Virginia and MCLE Regulations 103(b), 103(c)].

Approved 02/11/2002, Revised 10/25/2011

The MCLE Board has observed an increasing trend in the number of courses and programs submitted for accreditation by law firms. Some of these courses and programs are directed to firm attorneys and some are directed at a client audience. Such courses and programs (hereinafter referred to as "Law Firm Programs") must have the primary objective of increasing an attendee's professional competence and skills as an attorney, rather than instructing the attendee in the internal policies and procedures of the law firm or to market the firm's capabilities to clients. The Board further will examine the attendee counts to determine whether the program is focused at an attorney or non-attorney audience. For all such Law Firm Programs, the sponsor must submit an accurate count of attorney attendees and non-attorney attendees.

In determining whether law firm sponsored courses and programs will be accredited, consideration will be given to the following factors:

1. Where the Law Firm Program is taught in-house, whether the purpose of the course focuses on education of attorneys in an area of substantive law, professionalism or ethics or whether the course focuses on teaching attendees the firm's particular internal policies and procedures.
2. Where the Law Firm Program is taught in-house, whether the presentation is directed to an attorney audience or a non-attorney audience (i.e, paralegals, legal assistants, secretaries). The Board will examine the attendance count in evaluating this factor.
3. Where the Law Firm Program is taught by Law Firm attorneys and directed at a client audience, whether the purpose of the course focuses on education of attorneys in an area of substantive law, professionalism or ethics or whether the course focuses on marketing the Law Firm and the Firm's attorneys to clients.
4. Where the Law Firm Program is taught by Law Firm attorneys and directed at a client audience, whether the presentation is directed to an attorney audience or a non-attorney audience. For example, an annual law firm sponsored employment law update seminar focused at an attorney-only audience, which otherwise meets the Board's regulations, would be approved.
5. Typically, teaching credit will not be given where the presentation is primarily directed to a client or potential client audience, or is done in the ordinary course of the practice of law.

The MCLE Board will weigh the factors above to determine whether the Law Firm Program should be accredited. Law Firm applications must accurately report the audience for each program including the number of firm attorneys, attorney clients or potential clients and non-attorneys. The burden of demonstrating that a Law Firm Program qualifies for accreditation shall be upon the Law Firm Program sponsor or the individual attendee seeking accreditation.

[Paragraph 17(H)(1) of Section IV, Part 6, Rules of the Supreme Court of Virginia; MCLE Regulations 103(b), 103 (i)]

In 2009, the MCLE Board issued the first edition of this Opinion, which was entitled “Substance Abuse, Mental Health Disorders, Stress, and Work/Life Balance Topics.” In that edition of this Opinion the MCLE Board noted the following:

The MCLE Board is concerned about the effects of substance abuse, mental health disorders, stress and work/life balance on legal practitioners in the Commonwealth of Virginia and on the quality of legal services provided to the public. Because the MCLE Board believes that education on these topics will be beneficial in addressing these issues, it will consider topics pertaining to substance abuse, mental health disorders, stress management and work/life balance for CLE credit under certain circumstances.

In August 2017 the ABA National Task Force on Lawyer Well-Being (the “Task Force”) issued a report entitled “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” (the “Lawyer Well-Being Report”). In the Report, the Task Force correctly found the following:

To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. . . [T]he current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.

While the MCLE Board has in the past granted credit for lawyer well-being programs, the MCLE Board hereby emphasizes that programs promoting lawyer well-being may be approvable for CLE credit, so long as other requirements applicable to all CLE programs are met. In addition, programs must be clearly and primarily designed, directed to, and intended for attorneys, not a general audience.

By way of example, and not limitation, topics that may be approvable for CLE credit include the following:

• Substance abuse
• Mental health disorders
• Stress, sources of stress, recognizing stress, the effects of stress, minimizing stress, and stress avoidance
• Work/life balance
• Navigating the practice of law in a healthy manner
• Cognitive impairment
• Process addictions
• Burnout
• Depression
• Suicide awareness and prevention
• Promotion of civility in the profession*
• Promotion of mentoring
• Promotion of lawyer autonomy and control over lawyers’ schedules and lives
• Enhancement of optimism
• Promotion of resilience
• Promotion of diversity in the profession

As in the general population, the legal profession is aging and lawyers are practicing longer, which raises unique lawyer well-being issues. In order to promote the profession and provide quality legal services, the following programs are examples of topics that may be approvable for CLE credit when dealing with aging attorneys:

• Programming for detecting and addressing cognitive decline in oneself and colleagues
• Development of succession plans
• Options available to guide and support transitioning lawyers

Training for the legal profession in identifying, addressing, and supporting fellow professionals with mental health and substance abuse disorders is vital. Acknowledging this, the following topics are examples that may be approvable for CLE credit:

• The warning signs of substance abuse or mental health disorders, including suicidal thinking
• How, why, and where to seek help at the first signs of difficulty
• The relationship between substance abuse, depression, anxiety, and suicide
• How to approach a colleague who may be experiencing problems with mental health, depression, or substance abuse
• How to thrive in practice and manage stress without reliance on alcohol or drugs
• Self-assessment or assessment of others of mental health or substance abuse risk
• Lawyer assistance programs

The Task Force has further found the following:

[G]enuine efforts to enhance lawyer well-being must extend beyond disorder detection and treatment. Efforts aimed at remodeling institutional and organizational features that breed stress are as crucial, as are those designed to cultivate lawyers’ personal resources to boost resilience. All stakeholders should participate in the development and delivery of educational materials and programming that go beyond detection to include causes and consequences of distress.

Such topics may be appropriate for CLE credit, among others.

Programs on lawyer well-being that focus the presentation and written instruction materials on ethics or professionalism may receive ethics credit. By way of example, and not limitation, ethics credit may be provided for the following topics:

• Well-being presentations that focus on ethical considerations addressed in the Rules of Professional Conduct

• Lawyer well-being programs that address issues that may trigger the reporting requirements of the Rules of Professional Conduct
• Programs designed to help lawyers reconnect with, strengthen, and apply their values, strengths of character, and sense of purpose toward achieving outstanding professionalism
• Programs designed to support the development of organizational cultures within firms, law departments, and legal agencies that recognize, support, and encourage outstanding professionalism

Credit will only be provided for programs clearly and primarily designed, directed to, and intended for attorneys, not a general audience.

[Paragraph 17(H)(1) of Section IV, Part 6, Rules of the Supreme Court of Virginia; MCLE Regulations 103(b), 103(c)]

Effective 11/1/2009
Revised 9/24/2018

*The ABA National Task Force on Lawyer Well-Being has correctly concluded that [c]hronic incivility is corrosive. Report at Page 15.

The Supreme Court of Virginia has required through amended Rule of Court 1A:1(b)(3), effective February 1, 2014, that applicants filing to be admitted to practice in Virginia without examination must "[c]ertify in writing that the applicant has completed 12 hours of instruction approved by the Virginia Continuing Legal Education Board on Virginia substantive and/or procedural law within the preceding six-month period…." For the purpose of this opinion these specialized courses shall be referred to as the “Rule 1A:1Reciprocity Course.”

The Mandatory Continuing Legal Education Board (the “Board”) has determined that the 12 hours of instruction for Rule 1A:1 Reciprocity Courses shall address specific legal principles and concepts unique to Virginia in the following areas of substantive and procedural law: agency; business organizations; civil and criminal procedure (including appellate practice); conflict of laws; contracts; creditor's rights; criminal law; domestic relations; equity; evidence; local government law; real and personal property; sales; torts; trusts, wills and estate administration; the Uniform Commercial Code; Virginia constitutional law; and Virginia taxation.* Other laws, such as federal law, may be addressed only to the extent of addressing how such laws interplay with Virginia law and are relevant to the practice of law in Virginia. The 12 hours of instruction shall be offered as a single course.

The purpose of the 12 hours of instruction on these areas of Virginia law is to provide the attorneys waiving into Virginia under Rule 1A:1 a basic understanding of unique aspects of Virginia law in these areas and access to high quality written materials on these topics. Materials provided should be sufficient to assist the attendee when questions regarding the particular subject matter covered are raised at a later date and to serve as a general resource after course completion. The materials should include citations to specific state law and reference materials so that attendee can later obtain more specific information on the topic.

Course sponsors may apply for approval to present a Rule 1A:1 Reciprocity Course on a specific form created for this purpose. An agenda and all written materials must be submitted for review before the course will be approved.

The course may be offered by live or distance learning methods where the presenter and the attendee are not simultaneously engaged in the course at the same time. The program sponsor must clearly specify during its registration process when the last substantive revision of the course was made. Courses may not be approved for more than three (3) years after the date the course was originally recorded, except those courses determined by the Board to be substantively current. The materials must be accessible to the registrants for a minimum of six months after taking the course.

Rule 1A:1 Reciprocity Courses are a specialized subgroup of regular MCLE courses. Any licensed Virginia attorney may receive credit for attendance or teaching at these courses. However, those attorneys applying to practice in Virginia pursuant to Rule of Court 1A:1 can only satisfy the requirements of Rule 1A:1(b)(3) by attending a Rule 1A:1 Reciprocity Course and will not receive MCLE credit for attendance pursuant to MCLE regulation 102 (f).

This opinion does not override or contradict any other opinion or regulation.

Approved 3/6/2014

*Professional responsibility is not included as a topic because lawyers admitted under Va. Sup. Ct. Rule 1A:1 are required to certify that they have read the Virginia Rules of Professional Conduct. In addition, they are required to attend the VSB's Harry L. Carrico Professionalism Course.

The MCLE Board recognizes the importance of promoting awareness of the need for diversity and the elimination of bias in the practice of law to ensure that the legal system is equally responsive to the legal needs of all people. The MCLE Board further recognizes that Principles of Professionalism, endorsed by the Virginia Supreme Court, instruct that a lawyer should strive to “avoid all bigotry, discrimination, or prejudice."

While the MCLE Board has in the past granted credit on the topics of elimination of bias and the need for diversity programs, the MCLE Board hereby emphasizes that promoting the elimination of bias includes educating lawyers on how to recognize and address implicit bias in the practice of law. An understanding of implicit bias will help ensure that the legal system becomes more equally responsive to the needs of all people. The MCLE Board further recognizes that a qualified professionalism course or component may include topics of elimination of bias and need for diversity pursuant to MCLE Regulation 101(t), provided that it otherwise meets the standards of approval reflected in Regulation 103.

Courses pertaining to diversity or bias may be approvable provided the presentation and written instructional materials are specifically directed to attorneys and the topics are discussed in the context of the following: practice of law; the legal profession; the effects on the quality of or access to legal services provided to the public; or the administration of justice.

A presentation on diversity or bias, that otherwise meets the other requirements for CLE accreditation, may receive ethics credit only to the extent that the presentation and written instructional materials focus on the ethical considerations addressed in the Rules of Professional Conduct.

Topics that are primarily focused on the practice of law include, but are not limited to the following:

• Employment and recruiting decisions in the legal community
• Bias and diversity as it relates to litigation (jury selection, legal ethics, and professionalism)

The following topics are generally not considered to be primarily focused on the practice of law:

• Promotion of diversity and inclusion in general
• Promotion of diversity for the purposes of marketing, or profitability or strategic business planning, Internal firm policies relating to diversity, including hiring and retention.
• Employee morale and motivation bias in general (implicit, conscious, unconscious, etc.)

Effective 10/11/2021