On Mandatory CLE, Tongue Piercing and Other Related Subjects

by Stuart M. Israel  

State Bar of Michigan President J. Thomas Lenga’s arguments in support of the Bar’s mandatory CLE proposal reinforce my conviction that the proposal is a cosmetic gesture, one that would impose a burden on all Michigan lawyers without measurable return.

 Mr. Lenga argues that almost everybody else does it, even dermatologists, and we should, too. Forty states have mandatory CLE, he says, some for as long as 20 years. The everybody-does it argument has surface appeal. All teenagers know this. (“But Dad, all the kids at school are getting their tongues pierced.”) It misses the point, however. Before there were dermatologists, all doctors were bleeding patients with leeches. It doesn’t matter if everybody is doing it. What matters: is it worth doing? Mandatory CLE is not worth doing.

There are basic questions that the Bar’s proposal neither asks nor answers. Is there a lawyer incompetence problem? If so, how widespread is the problem? What are the sources of the problem: sloth, inadequate training, an ineffective bar examination, flawed character and fitness screening, drug and alcohol abuse, human frailty, or something else? If we don’t define the problem and its scope, we can’t know if mandatory CLE is an appropriate solution — or any solution at all.

Mr. Lenga acknowledges as much in his column in the January 1999 Michigan Bar Journal. He writes:

Will this do any good? Will this make us better at what we do? There are no studies that anyone can cite which permit measuring lawyer performance with and without CLE. However, I submit that no studies are needed. We know that education is good and makes people better at what they do. How can lawyers rationally reject that fundamental principle?

To answer Mr. Lenga’s rhetorical question: lawyers can’t rationally reject that fundamental principle. Education is good. So are motherhood and (low fat) apple pie. What I reject is mandatory CLE, governed by CLEC mavens who will tell me what “education” is acceptable and make me sit in “a class or seminar setting” although I prefer, and learn better with, efficient, economical and custom-tailored “self-study.” There’s the rationality gap:  forced “education” is not good.

This is really about image. We serve the public interest, the Bar will say, by requiring all 32,366 Michigan lawyers to complete 30 hours of CLE every three years or face “involuntary inactive status.”  I don’t buy the connection between mandatory CLE and image. First, I don’t think the public pays attention to our CLE endeavors.  Second, mandatory CLE does not enhance our image. After more than 20 years of mandatory CLE in 40 states, the public still is appalled by the Monicagate/Paula Jones/O.J. lawyers, lawyer jokes continue to proliferate, and people still love to hate all lawyers except their own.

Speaking of the image question, I’m disappointed that Mr. Lenga ignores my brilliant, simple and cheap idea for enhancing the public image of lawyers by disseminating a client “Bill of Rights.”  (C’mon, Tom, refer it to a State Bar committee.)

Mr. Lenga also doesn’t address my concern about a powerful bureaucracy headquartered in the State Bar, imposing its view of acceptable “education.” Will CLEC approve for credit my favored form of “self-study,” reading advance sheets, journals and books? CLEC certainly will have the budget to give careful consideration to rejecting my “self-study.” Mr. Lenga posits “an annual administrative fee of $10 or less” (although proposed Rule 17.10 leaves it to CLEC to set the price tag). At $10 for each lawyer, CLEC’s annual budget will be approximately $330,000. That will pay for a lot of bureaucracy.

Mr. Lenga does not respond to my in loco parentis criticism.  The Bar proposal would require at least a third of mandated CLE to be in “formal courses in a class or seminar setting.” The other two-thirds can be divided between law-firm-sponsored programs and “self-study.” All CLE must be approved for credit by CLEC, which will determine if a “course or activity” is “of intellectual or practical content” and contributes “directly to lawyers’ professional competence or skills, or to their education with respect to their professional or ethical obligations.” The approval criteria are listed in proposed Rule 17.7. Why is this approval process necessary? If I am forced to submit a compliance affidavit, isn’t it enough to certify that I spent 30 hours reading materials that in my judgment contribute to my professional development? If CLEC respected my word and my judgment about what CLE is useful to me, and if CLEC extended this respect to all Michigan lawyers, there would be no need for an expensive bureaucracy or for rigid format requirements that do not acknowledge lawyers’ varied learning styles, needs and resources. Eliminating bureaucracy and format requirements would not diminish the salutary effects of CLE, but it would make mandatory CLE a far less burdensome gesture.

I will address four more of Mr.Lenga’s points. First, Mr. Lenga suggests that our choice is between either embracing mandatory CLE or permitting lawyers to “rely on their law school education, never having to update.” That is not the choice. The practice of law is a perpetual learning experience.  Lawyers must and do “update” constantly. Lawyers should, and Mr. Lenga acknowledges the majority do, participate in CLE.  It doesn’t follow that they should be forced to do so. Nor does it follow that CLE must be CLEC-certified to be worthwhile or that lawyers cannot be trusted to meet their professional responsibility to maintain competence unless they are required to submit affidavits attesting to attendance at formal CLE. Second, I do not say, as Mr. Lenga suggests, that law schools have failed “to adequately educate us.” I only suggest, to paraphrase President Clinton, that they can do better. I say the Bar’s efforts and money would be better spent working with law schools to enhance the connection between the basic curriculum and the law as it is practiced, not enforcing mandatory CLE. Third, Mr. Lenga says 40 states have mandatory CLE, not 39 as I wrote. My source is the American Bar Association Center for Continuing Legal Education website (www.abanet.org/cle/mcleview.html) which lists the 39 states. If the ABA is wrong, perhaps it cannot be relied on to provide CLEC-certified CLE. Fourth, I did not graduate law school “over thirty years ago” as Mr. Lenga states. I graduated in the seventies. Okay, the very early seventies, but I have carefully calculated and  can confirm that it’s only been almost thirty years.

I don’t want to be too hard on Tom Lenga. He has been a good sport about this and, after all, this is America and he has the right to hold misguided opinions. Still, as I said before, mandatory CLE is a shallow gesture. It is premised on an undefined problem. It lacks measurable objectives. It presumes salutary results on faith. It would require thousands of lawyers to spend millions of dollars on an ineffective effort to improve image. It would entrench a new bureaucracy within the State Bar, with the power to set an “annual administrative fee” and to define for all of us what “education” is acceptable. The Bar’s mandatory CLE proposal is a bad idea and you know it. Write to the Michigan Supreme Court (P.O. Box 30052, Lansing, MI 48909) and say so. Do it now, before intertia rules.

WE CAN SEE THE FUTURE AND IT IS BUREAUCRACY

If you think concern about a mandatory CLE bureaucracy is overwrought, check out Rule X of the Supreme Court Rules for the Government of the Bar of Ohio, the “Attorney Continuing Legal Education Regulations” that accompany Rule X, and Forms 1a-11 used to communicate with the Ohio Commission on Continuing Legal Education. Rule X and the regulations, which total approximately 34 pages, are available at www.sconet.ohio.gov. 

For example, Regulation 407 sets the criteria for lawfirm-sponsored CLE suitable for credit toward Ohio’s requirement that lawyers complete 24 hours of CLE every two years.  A law firm must submit “an application for approval, on a form provided by the Commission, at least sixty (60) days prior to the date of presentation of the program.” The program must satisfy the eight criteria “set forth in Regulation 406.” Among other things, Regulation 406 requires the “CLE activity” to have “significant intellectual or practical content,” to be “an organized program of learning,” to have “program leaders or lecturers”who are “qualified by education, or have the necessary practical skill to conduct the program effectively,” to provide “written course materials of such quality and quantity to indicate that adequate time has been devoted to their preparation and that they will be of value to the participants,” and to be conducted “in a suitable setting, conducive to a good educational environment which provides registrants with adequate writing space or surface.” 

What’s the difference between “adequate writing space” and “adequate writing surface?” Obviously, Regulation 406 leaves refined application of the mandatory CLE requirements to Commission discretion. 

In addition, under Regulation 407.1, the law firm sponsor must supply in advance a course description, an “outline or description” of course materials, a resume of each speaker and “a written synopsis or outline of the presentation.” One or more speakers “shall not be a member, partner, associate or employee” of the sponsoring firm and the program “shall be open to Attorneys not associated with the Sponsor.” After the program the firm must submit “the requests for CLE Credit (FORM 1 and 1(b)) of all Attorneys in attendance.” Also, a “list of Attendees at each Approved CLE Activity shall be kept by the Sponsor for at least two (2) years following the presentation.”  Among the remaining requirements: “The program shall be scheduled under circumstances so as to be free of interruption from telephone calls and other office matters.” Don’t get the idea that Ohio is too easy on law firms: not more than “twelve (12) hours of CLE credit for any biennial reporting period may be earned by an Attorney” at law-firm sponsored CLE.

Of the 24 CLE hours required every two years, Rule X mandates that 60 minutes must be “related to the Code of Professional Responsibility,” 60 minutes must be “related to professionalism (including A Lawyer’s Creed and A Lawyer’s Aspirational Ideals adopted by the Supreme Court),” and 30 minutes must be “on substance abuse, including causes, prevention, detection, and treatment alternatives.” Rule X, Sec. 3(A)(1)(a), (b) and (c). Why stop there? The media recently reported on a Michigan lawyer arrested for armed robbery. While most of us don’t resort to robbery-as-rainmaking, it wouldn’t hurt to get a little instruction on “criminality, including causes, prevention, detection and treatment.” While we’re at it, I know a few lawyers who’d profit from some education in fashion sense and table manners. Driving etiquette and nutrition wouldn’t hurt, either. Education is good.

As long as we’re talking about professional responsibility, consider Michigan Rule of Professional Conduct 1.1.

A lawyer shall provide competent representation to a client. A lawyer shall not: (a) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it; (b) handle a legal matter without preparation adequate in the circumstances; or (c) neglect a legal matter entrusted to the lawyer.

The comment to Rule 1.1 includes the following: “To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.” Do we really need more? Do we need 34 pages of new rules and regulations, a pile of forms, more State Bar staff, and a 12-member commission with a $330 thousand annual budget?  

This paper was originally printed in Labor and Employment Lawnotes (Spring, 1999) and has been reprinted with permission.