Currently, Tennessee gives two kinds of "ethics" credit. Segments of courses that can apply to either the 12-hour General or the 3-hour Ethics requirement get "Dual" credit (meaning that they have dual accreditation, NOT that they count twice!). Segments that only count toward the Ethics requirement get "EP" credit. For example, segments discussing the Rules of Professional Responsibility get "Dual" credit. Segments on law practice management get "EP" credit. Originally, when the 3-hour Ethics requirement was added, this distinction allowed us to accredit some types of courses that we might not have otherwise accredited. Law practice management courses are the prime example. They were not accredited prior to the addition of the 3-hour Ethics requirement. However, in presenting that recommendation to the Court, the Commission said that such courses would be accredited for that 3-hour requirement. So, the concept of "Dual" and "EP" credit came to be.

One consequence of this approach has been increased complexity. Some "ethics" credits also count toward the General requirement; some do not. It is hard for sponsors and attorneys to keep them straight. It is even hard for the Commission's staff on occasion. Thus, administratively, it would be good to simplify. But, administrative simplicity should not take precedence of accomplishing the purposes of the MCLE program. So, can we achieve both?

Of course, the purpose of MCLE is to improve the performance of attorneys for their clients. So, it could be argued that courses for lawyers, taught by those with appropriate expertise (generally, but not always, lawyers), and intended to make better lawyers should get CLE credit. The Commission, this argument would continue, should create as few barriers as possible for attorneys seeking to gain the knowledge, skills, and habits they need to become better attorneys. Yet, perhaps arising from the "law is a profession!" vs "law is a business!" debate, there has been an argument that attorneys should not be able to earn all their CLE requirements through, for example, studying better ways to manage their law practices or how to increase their commitment, energy, and engagement with their practices. Today, however, the wisdom of that perception is in question.

In 2007, the Commission surveyed Tennessee attorneys and found that they identify lack of law practice management skills as the most common cause of both poor lawyering in general and in their own practices. (See "Causes of Poor Lawyering.") Close behind is lack of commitment, energy, and engagement with their practices. Lack of substantive knowledge comes in a distant third. Perhaps this is an indication that the MCLE program in Tennessee has helped reduce the role of lack of substantive knowledge in poor lawyering. Regardless, lawyers seem to be telling us that the areas which offer the greatest opportunity for increased competence are law practice management skills and anything that affects commitment, energy, and engagement. Further, we have some evidence that appropriate courses based on current research can help lawyers increase their commitment, energy, and engagement with their practices. (See "Survey of Participants in Lawyer Well Being Programs.")

With these points in mind, the Commission is considering amending Section 5H of its regulations as shown below. Under this revision, only "General" and "Ethics and Professionalism" credits would exist, and all "Ethics and Professionalism" credits would be "dual" -- they would count first toward the Ethics and Professionalism requirement, then toward the general requirement. Topics that relate directly to ethics and topics focused on improving lawyer competence by helping lawyers function more effectively as individuals and teams would get "Ethics and Professionalism" credits and ALL such credits would be "dual" -- able to count toward the Ethics and Professionalsim or the General requirement as needed by the attorney. We would no longer assign "EP-only" credits.

In our regulations, this would take the form of amending section 5H to read as follows:

5H. Ethics and Professionalism (Dual) Credit

1. Dual credit will be granted to programs or topics within programs to the extent that the subject matter is the disciplinary rules or ethical considerations applicable to attorneys.
2. Dual credit will also be granted to programs or topics:

a) designed to sustain or increase the capacity of attorneys to strive for and to achieve the highest, aspirational levels of professionalism, including programs aimed at increasing attorney well-being, optimism, resilience, relationship skills, and energy and engagement in their practices,
b) designed to help lawyers re-connect with, strengthen, and apply their values, strengths of character, and sense of purpose toward achieving outstanding professionalism,
c) designed to protect lawyers or help them recover from the deleterious effects on professionalism of stress, substance abuse, and poor staff, financial, or time management, or
d) designed to support the development of organizational cultures within firms, law departments, and legal agencies that recognize, support, and encourage outstanding professionalism.

3. All programs accredited under this section must be clearly and primarily designed and intended for attorneys, not a general audience.
4. Programs and topics focused on marketing or advertising legal services will be denied all credit.
5. In addition to the other requirements set forth in this Regulation 5H, in order to qualify credit, the topics must be presented in a session separate and apart from the general credit topics, with specific time allocated to only such Dual or EP topics.

You can see the current version of 5H at http://www.cletn.com/Regulations.aspx. Or see a copy of the current 5H showing the changes necessary to reach the proposed version. We would also need to delete Section 5G.5 in its entirety. That section reads, "5. Law practice management topics will receive EP credit only. Topics dealing with ethical considerations as they relate to law practice management or marketing of legal services will receive dual credit." The first sentence in that subsection would no longer be true and the second sentence would be redundant.