Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?

Vol. 22 No. 2

By

Deborah L. Rhode is the Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession at Stanford Law School. Lucy Buford Ricca is the Executive Director of the Center on the Legal Profession at Stanford Law School.

[N]obody has adduced the slightest reason to believe that inadequate service by lawyers and judges would or will be improved by fifteen hours a year of presence at miscellaneous lectures of some sort or other. All agree that competent professionals don’t need the compulsion; the thought that incompetents will benefit is so improbable on its face as to make the across-the-board command a fantastic species of overkill.

– Marvin Frankel 1

However improbable, the assumption that sitting passively in a few continuing legal education (CLE) classes will prevent lawyer incompetence is now conventional wisdom. In all but five states and the District of Columbia, CLE is mandatory and consumes millions of dollars and millions of hours of lawyers’ time.2 At a moment when so much is open to change in the American legal profession, it makes sense to reexamine the premises and practices of continuing legal education. Our own view, after exploring the performance of CLE programs, is that the current system should be replaced with a combination of mandatory and voluntary programs. Continuing legal education should be required for new lawyers and practitioners who have been subject to disciplinary, judicial or malpractice sanctions, and should be voluntary for others. Alternatively, the current system could be retained with greater quality control and credit for lawyers who perform work as part of a designated bar pro bono program.

History

The Evolution of Continuing Education Programs

Continuing legal education began with lectures sponsored by local bar organizations.3 In 1933, The Practicing Law Institute was founded to bridge the gap between law school and practice, as it began offering courses to recent graduates.4 Four years later, the American Bar Association (ABA) resolved to cooperate with state and local bar associations to provide “opportunities for supplementing the legal education and training of its members.”5 World War II spurred those efforts. To help returning veterans refresh their legal skills, the ABA partnered with PLI to present courses in about half the states.6 In 1947, the ABA entered into a memorandum of understanding with the American Law Institute (ALI), which created a partnership between the two organizations in sponsoring CLE activities.7 Among the most important activities were a series of conferences at Arden House, in Harriman, New York. These conferences, held in 1958, 1963, and 1987, sought to develop the foundations and framework for an effective CLE system in every state.

In 1973, a widely publicized speech by Supreme Court Chief Justice Warren Burger at Fordham Law School served as a catalyst to mandatory continuing legal education. Burger viewed the poor quality of American advocacy as “a problem of large scope and profound importance.”8 Most controversially, Burger accepted “as a working hypothesis that from one-third to one-half of the lawyers who appear in the serious cases are not really qualified to render fully adequate representation.” Other judges joined the chorus and fed the perception that something must be done.9 In 1975, an ALI-ABA catalogue listed 500 programs in 33 states, and Iowa and Minnesota became the first states to mandate CLE.10

Not all constituencies were persuaded either that there was a significant problem or that mandatory CLE was the best way to address it. A series of empirical studies in the 1970s cast doubt on Warren Burger’s working hypothesis. In one survey of some 5500 state and federal trial judges, 72 percent of respondents indicated that 70 percent or more of attorneys who had appeared before them had been fully competent.11 Fewer than 15 percent of judges put the percentage of competent attorneys at less than 50 percent.12 In studies evaluating actual trial performance, judges found only 8.6 percent of actual trial performances to be inadequate.13 Another found that 87 percent of rated trial performances were seen as at least minimally competent.14 The most common reason for ineffective performance was inadequate preparation, rather than lack of knowledge, and no correlation was found between competency and taking a course in trial advocacy.15 Such findings, however, did little to stem the tide of mandatory CLE. In 1986, the ABA adopted a resolution that urged states to consider imposing continuing education requirements, and by the following year over half the states had done so.16

That trend was encouraged in 1992, when the ABA issued a prominent report by a task force of the ABA Section on Legal Education and Admissions to the Bar (MacCrate Report), which stressed the concept of legal education as a continuum extending throughout the lawyer’s career.17 Continuing education was seen as a responsibility of professionalism, and all but five states eventually came to require courses as a condition of active bar membership. Most states adopted CLE by rule of their supreme court; a few did so as a matter of statute or bar regulation.18 States varied in how many credit hours they required (typically 12 to 15); whether they required separate ethics, professional responsibility, or substance abuse courses; and whether they imposed special “bridge the gap” course requirements on new attorneys.19

The Original Rationale for Continuing Education

The Final Statement of the first Arden House Conference sets forth the rationale for continuing legal education:

American lawyers today are confronted with problems of vast and increasing complexity. No law school education can be expected to deal with all of these problems. A practicing lawyer has an obligation to continue his education throughout his professional life. … The organized bar has the primary obligation to make this continuing legal education available to the members of the profession.20

The conference participants also believed that the lawyers’ obligation was consistent with self-interest.

[If the general practitioner] will devote the time and energy to further his education he will be a better lawyer, give better service, and will be better compensated. It is clear from various national studies that lawyers are not as well compensated as they should be, in comparison with other professions, and that therefore they must qualify themselves to give better service to their clients and thus to increase their earnings. 21

CLE would also serve a public relations function: “[T]he repute of the profession would be greatly benefited not only because of the improved competence of young lawyers but also because of recognition by the public that the Bar is making every effort to give it the very best of service.”22

The need for continuing education was thought particularly acute for newly admitted lawyers. Although the conference was at pains not to “disparage or criticize the work of the schools, “which “generally speaking ...is excellent,” critics were almost unanimous that legal education delivered “comparatively little of the practical and technical knowledge without which the advice or representation offered by the young lawyer may very well result disastrously.”23 In a prediction that in retrospect seems somewhat naïve given recent experience, conference participants also suggested that, “the older practitioner, who has forgotten some of the theory and philosophy learned in law school, seeks study which is not only practical but also offers something of the history of the law, legal methods, comparative law, international relations and the interrelation of law and the social sciences.”24 Equally idealistic was a conviction that was held “quite strongly, that through moral suasion, the pressure of professional opinion and the common sense of lawyers, even without any form of compulsion, it can be brought about that lawyers will seek appropriate additional training and instruction.”25

From a contemporary vantage, another striking aspect of both Arden I and II was a willingness to let law schools off the hook. The report of Arden II was explicit on this point. It noted that  “[t]he deliberations of both Conferences proceeded on the premise that it is not the function of law schools to provide training on practical skills.”26 Nor was it the function of law professors to serve as CLE faculty. Harvard Law School Dean Erwin Griswold explained to participants that his colleagues had more pressing claims on their time; they might otherwise be finishing a chapter in a casebook or spending “six weeks up in the mountains in New Hampshire trying to really get rested, so [they] ... could get back and meet all those students next fall.... There are very real problems there of allocation of time. 27

Professional Responsibility

A further theme of both Arden I and Arden II was the importance of instruction in professional responsibility, and a broad conception of what that subject entailed. Arden I acknowledged that prior programs had not always given the topic sufficient attention and that in the future, they should “help the lawyer to fulfill a wide range of professional responsibilities to the courts, to the administration of justice, to law reform, to the law-making process, to his profession, and to the public.”28 How exactly this was to be achieved was not entirely clear. But a “heartening statement was made...that as programs mature, more emphasis can be placed on the theme of professional responsibility.” 29 By the second Arden conference, the challenge of developing effective professional responsibility courses was more apparent. Participants acknowledged that coverage of the “public responsibilities” of the profession was “apt to verge on exhortation, which all agree is to be shunned in continuing legal education.”30 Moreover, if such issues were presented in a separate legal ethics program, it would “be optional with the lawyer whether he will attend the ... session or go fishing.” 31 Accordingly, conference participants advised presenting ethics materials by the pervasive method throughout the curriculum.32

In 1987, at the Arden III conference, participants offered a sobering assessment of progress yet to be made. The consensus was that “[d]espite the attention focused on this issue over the past 30 years, CLE has not developed effective methods of teaching professional responsibility. Few lawyers voluntarily attend courses in professional responsibility and, even if compelled to attend, mere attendance does not guarantee… receptivity.” 33 The conference participants nonetheless agreed that CLE should continue to offer separate programs on professionalism, and reaffirmed that the most effective way of teaching the subject was through the pervasive method.34 In the view of many participants, no challenge was “more important than the effort to infuse a lawyer’s work with a higher sense of professional responsibility. The Conferees saw in that effort an opportunity to rekindle a sense of idealism in lawyers individually and professionally.35

Continuing Challenges

The Arden III conference offered an occasion to reflect on other continuing challenges for CLE. Cost was a primary concern. Lack of funding impeded the development of adequate skills courses, and was a “major impediment to meaningful transition education.” 36 Participants identified no solutions apart from the general consensus that “[e]xploration of funding sources should continue.”37 Participants similarly raised, without resolving, questions about how to make programs more accessible through scholarships and reduced fees for lawyers of limited means, particularly minority lawyers.38 Money was also at the root of concerns about quality. Most states lacked the resources to evaluate providers or proposals for programs. The result was considerable variation in quality. One study relying on independent observers to rate a random sample of CLE courses found that 17 courses were viewed as good to excellent, 3 were average, and 7 were marginal to deficient. 39 Matters of professional responsibility were treated adequately in 12 courses, inadequately in 3, and not all in 11.40 The lack of formal oversight of quality called into question “the seriousness of the profession’s commitment to education.... A method of coherent accreditation must be found.”41

On the most significant issue concerning CLE, whether programs should be mandatory, the Arden III participants declined to express a view. Indeed, conference planners decided not even to schedule discussion of the issue “because of its controversial nature and the lack of empirical evidence as to its success.”42 It was agreed, however, that the ABA should organize a study of mandatory CLE to determine whether it enhanced competence.43

The ABA never undertook such a study. Nor did any other independent researcher. 44 In 1995, a District of Columbia Bar task force set up to consider the question of whether the District should adopt a mandatory CLE regime noted, “[T]here have been no reliable, scientific demonstrations of the efficacy of continuing legal education.”45 But the absence of evidence concerning the effectiveness of mandatory CLE did little to prevent its adoption. As the DC task force observed, “Those jurisdictions which have adopted MCLE [38 at the time] have generally done so without relying on any empirical demonstration of a particular relationship between MCLE, and improvements in attorney competence.”46 What accounts for its widespread acceptance bears closer scrutiny.

Justifications for the Continuing Legal Education Mandate

Arguments in support of mandatory CLE often start and sometimes end with the premise that, as a California report put it, “education for all lawyers is valuable, and no one seriously argues it is not.”47 “How can you be against education?” asked the chair of the New York state bar committee on lawyer competency. “It’s like being against apple pie.”48 Although acknowledging the absence of studies establishing the value of CLE, a Michigan state bar president nonetheless maintained that “no studies are needed. We know that education is good and makes people better at what they do. How can lawyers reject that fundamental principle?”49 But what opponents are rejecting is not education per se, it is mandatory continuing legal education in its current form. And if the value of continuing education in its current form were as self-evident as supporters claim, then compulsion would not be required.

It is precisely because many lawyers have not seen the benefit of CLE that state bars have pushed for minimum requirements.50 Rates of attendance at voluntary programs vary widely, but it is clear that many lawyers would not participate without the threat of sanctions.51

A premise of MCLE is that attendance, even if compelled, will enhance competence. This argument is often accompanied by the assertion, as made by the DC Bar task force, that “the task of maintaining competence in the modern world of legal practice is becoming increasingly challenging as the amount and complexity of modern regulation grows exponentially, and lawyers continue to play an increasingly more prevalent role in all aspects of our community’s life.”52 Particularly for new lawyers starting a small or solo legal practice, “the seminars can fill the void of a mentor who would teach them some of the practical aspects of practicing law.”53 For more senior lawyers, CLE is a way to keep abreast of recent developments, hone their specialties, or explore new practice areas. Even lawyers who are “anti-MCLE” will assertedly “run the risk of learning something....MCLE certainly will not hurt competence and may even help improve it.”54 But the issue is whether it will do so enough to justify the cost. On that point, supporters are often silent, although an occasionally heard defense is that the cost passed on to clients is “insignificant.” 55

A second justification for MCLE is that it enhances public trust.56 As one commentator acknowledged, “To deny that public relations is a part of any MCLE program is to ignore the obvious.”57 A variation on this argument is that because other states have a continuing education requirement, lawyers in a state without mandatory CLE are at “risk [of losing] public confidence.”58 A parallel variation is that because other professions are subject to continuing education mandates, the bar would jeopardize its own public standing if it failed to follow suit.59 A California bar report detailed the obligations imposed on other licensed occupations, including not only doctors and accountants, but also acupuncturists, barbers, cosmetologists, and real estate appraisers. The report then concluded “that it would be cavalier, if not shocking, were California lawyers excused from the obligation to continue to learn, while all those other California professionals, and most lawyers across the land, are required to discharge it.”60

A further argument in support of MCLE is that it increases the quality and variety of programs. The assumption is that accreditation of mandatory courses will increase quality and that enhanced demand will encourage variety. In one survey, slightly more lawyers subject to mandatory CLE rated the variety of courses excellent, and the quality of courses good compared with lawyers in states without a requirement.61 Experience in other occupations similarly suggests that requiring courses leads to better programs and more consumer choices.62

A final argument favoring MCLE is that lawyers subject to the requirements generally support them. Three-quarters of Colorado attorneys favored the concept of mandatory continuing legal education and almost the same percentage thought that attending at least 15 hours of CLE each year made them more competent.63 In California, half of those surveyed in a random telephone poll rated CLE programs as good or excellent and only 8 percent said that no CLE hours should be required.64 Surveys of lawyers in other states have yielded similar results.65

Critiques of the Continuing Legal Education Mandate

Critics of mandatory CLE often start from the premise that the burden of proof lies with those who would impose requirements to show that they result in more competent lawyering. As noted earlier, no such data is available. There is no research “demonstrating that lawyers who participate in CLE deliver better services than lawyers who do not.” 66 There is, moreover, reason to doubt that compelled passive attendance at CLE courses is an effective strategy for addressing the causes of incompetence. To state the obvious, “[p]resence is not evidence of learning.” 67 Anyone familiar with MCLE will recall the sight of participants reading newspapers, emails, and other non-course related materials.68 Compelled participation is “neither conducive to learning nor compatible with professionalism and its integrity.”69 For many adult learners, Plato’s wisdom remains apt: “knowledge which is acquired under compulsion obtains no hold on the mind.”70

So too, the format of most CLE courses is inconsistent with adult learning principles. “What is heard in the classroom, without advance preparation, classroom participation, review, and application is unlikely to be retained.”71 One survey of Indiana participants reported

scant evidence that the court’s minimum continuing legal education standards have promoted competence or professional development in a meaningful way. We found Lawyers who attend CLE programs acquire new knowledge but do not retain it and seldom apply the newly acquired knowledge in their work.... Almost half of those surveyed reported that they seldom practice what they learn at CLE programs and twenty percent reported that they did not know whether they ever practice what they learned. While survey respondents reported that the training sessions provided useful information and techniques, most did not report lasting changes in their skills and knowledge. Most attorneys do not have enough practical application and follow up to create lasting change.72

In a survey of Pennsylvania attorneys, only about a quarter of participants thought that what they learned in MCLE would help improve their practices.73

Almost never do CLE programs provide the kind of environment that experts find conducive to adult learning, which involves preparation, participation, evaluation, accountability, and opportunities to apply new information in a practice setting.74 As studies on continuing education in medicine make clear, lectures are a particularly inadequate tool.75 Effective training is a process, and the one shot lectures and panels that are common in MCLE fall short.76 Nor do those programs address the root causes of most client grievances, which involve not lack of technical knowledge, but problems of neglect, inadequate preparation, overcharging, failure to communicate and so forth.77 In criminal cases, where ineffective assistance of counsel is of greatest concern, the problems are largely attributable to excessive caseloads, which CLE does nothing to address.78

It is equally doubtful that mandatory continuing education is an effective public relations strategy. There is no evidence that the public “pays attention to our CLE endeavors. After more than 20 years of mandatory CLE... people still love to hate all lawyers except their own.”79 A search of newspaper archives from a decade ago showed “that this issue makes nary a blip on the public radar.... If the mandate dies, civic grief counseling will not be necessary.”80 If the public did pay attention, it is unclear how much their confidence would be enhanced by seeing the tax-deductible and employer-reimbursed boondoggles that can qualify for CLE credit: an “ethical afternoon at the movies,” a sports law seminar complete with baseball game and complimentary hot dogs; a week at Club Med in Mexico discussing legal developments with Superior Court judges; courses in stress reduction through Tibetan relaxation methods; and seminars in overcoming compulsive overeating.81 As other commentators note, public relations seems an “especially flimsy hook on which to hang mandatory CLE. One could just as easily and effectively proclaim to the public that ...lawyers voluntarily participated in x-thousands of CLE hours in the most recent calendar year.”82

As to the quality of continuing legal education programs, a mandatory system with captive audiences may not create as much incentive for cost-effectiveness as a voluntary program.83 Under a pure market system, “the programs with substance and reasonable fees... will return and will multiply. These natural selective forces are severely restrained in a mandatory system.” 84 The problems of inadequate quality control that Arden III identified seem clearly to have persisted.85 Many state bars still lack resources to monitor quality. 86 Nor can they oversee compliance with self-study, which permits attorneys to certify that they have watched videos, listened to audiotapes or completed on-line programs. Since no exams are required, bar officials cannot verify whether any significant “study” occurred, or whether participants were even sober or awake, let alone engaged in the learning process.

Strategies for Reform

Mandatory CLE requires rethinking. Despite the weakness of the case for requirements, abolition would be politically difficult. In most states, the train has left the station and mandatory CLE offers benefits to bar associations, not only in course fees but in attendance at bar conventions where CLE credit is available. It is also likely that terminating requirements would be seen as a public relations problem. It is difficult enough to resist imposing mandates in the first instance; it is harder still to suggest that they are no longer necessary.

What does seem possible, however, is to make continuing education programs more meaningful. One possibility is to require both less and more. States could demand fewer hours but impose greater quality controls. Bar officials could require passage of an exam or at least crack down on programs that bear little demonstrated relationship to performance in practice. More incentives and bar support should be available for courses that meet best practice standards suggested by adult learning research and that supply opportunities for interaction, application, feedback, and follow up.87 An example is the New York City Bar Association’s pilot New Lawyer Institute, which offers mentoring as well as a year-long curriculum including programs targeted to practical skills, “nuts and bolts” practice management, and career development. 88

Alternatively, states could combine required and voluntary approaches. CLE could be mandatory for new lawyers and for other practitioners who are subject to disciplinary, judicial, or malpractice sanctions. The distinct need for practical, “bridge the gap” training for newly admitted attorneys is a constant lament about the profession.89 There has been a relatively recent trend toward imposition of separate MCLE requirements on new attorneys, but these programs vary immensely in depth and scope.90 The current experimentation by states such as New York could lead to a more comprehensive focus of mandatory CLE requirements where they should be of the most assistance: in rendering practical skills development and fostering mentoring within the professional community. Attorneys who complete voluntary CLE courses and pass a basic exam could receive a certification of their coursework. That credential could become part of a broader certification structure. For example, lawyers who achieved such recognition could use that status in attracting clients, and reducing their malpractice insurance premiums. States could encourage this trend by expanding specialization programs that require CLE and publicizing their value to consumers.91

Another possibility would be to give credit to lawyers who provide services as part of designated pro bono programs that include training and supervision. For example, New York allows three MCLE credit hours per year for pro bono work; Colorado allows nine credit hours per three-year reporting period for pro bono work.92 An expanded system of training and credit might provide a constructive alternative for lawyers who view current options as mindless busywork.

As an abstract concept, continuing education is hard to oppose. Its potential value is self–evident for a profession confronting changing laws, evolving practice technologies, and significant ethical challenges. But as currently administered, the system falls far short of its potential and leaves much to be desired. Legal education should be a continuing commitment, not the token gesture that many lawyers now experience.

Endnotes

1. Marvin E. Frankel, Curing Lawyers’ Incompetence: Primum Non Nocere, 10 Creighton L. Rev. 613, 630 (1977).

2. MCLE Information by Jurisdiction, American Bar Association (“ABA”), (http://www.americanbar.org/cle/mandatory_cle/mcle_states.html). The District of Columbia does have a requirement that all lawyers newly admitted to the DC Bar take a professionalism and DC practice course, but does not have a regular, ongoing CLE requirement. See Rules and Bylaws, Rule II §3, DC Bar, available at https://www.dcbar.org/about-the-bar/rules-and-bylaws/rule-02.cfm (last visited Feb.12, 2014). See also Membership, Mandatory Course, DC Bar, https://www.dcbar.org/membership/mandatory-course.cfm (last visited Feb. 12, 2014).

3. Herschel H. Friday, Continuing Legal Education: Historical Background, Recent Developments, and the Future, 50 St. John’s L. Rev. 502 (1975).

4. Carroll C. Moreland, Professional Education of the Bar: Growth and Perspectives 11-13 (American Bar Foundation 1972).

5. Friday, supra note 3, at 503-504 (citing ABA Sec. Legal Educ. and Admissions to the Bar, Report, 65 A.B.A. Rep. 342, 345 (1940)).

6. Id. at 504; ABA Sec. Legal Educ. and Admissions to the Bar, Legal Education and Professional Development— An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 306 (1992) [hereinafter MacCrate Report].

7. Friday, supra note 3, at 504.

8. Warren E. Burger, The Special Skills of Advocacy; Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 42 Fordham L. Rev. 227 (1973).

9. See, e.g., Irving Kaufman, The Court Needs a Friend in Court, 60 A.B.A. J. 175 (1974); David Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1 (1973).

10. Friday, supra note 3, at 505, 507.

11. A.B. Conant, Jr., Judicial Survey on Quality of Advocacy: The Jury Returns, in A.L.I.-A.B.A. Comm. on Continuing Prof’l Educ., Continuing Legal Education for Professional Competence and Responsibility Since Arden House II 72 (1984).

12. Id.

13. Anthony Partridge & Gordon Bermant, The Quality of Advocacy in the Federal Courts: A Report to the Committee of the Judicial Conference of the United States to Consider standards for Admission to Practice in the Federal Courts (Federal Judicial Center, Aug. 1978). See also Roger C. Cramton & Erik M. Jensen, The State of Trial Advocacy and Legal Education, Three New Studies, 30 J. Legal Educ. 253-268 (1979), reprinted in A.L.I.-A.B.A. Comm. on Continuing Prof’l Educ., Continuing Legal Education for Professional Competence and Responsibility Since Arden House II, at 78 (1984).

14. Dorothy Linder Maddi, Trial Advocacy Competence: The Judicial Perspective, 1978 Am. B. Found. Res. J. 105 (1978).

15. For inadequate preparation, see Dorothy Linder Maddi, Improving Trial Advocacy: The Views of Trial Attorneys, 1981 Am. B. Found. Res. J. 1049-1078, reprinted in A.L.I.-A.B.A. Comm. on Continuing Prof’l Educ., Continuing Legal Education for Professional Competence and Responsibility Since Arden House II, at 201 (1984). See also Conant, Judicial Survey, supra note 11. For the lack of correlation with trial advocacy courses, see Partridge and Bermant, The Quality of Advocacy, supra note 13.

16. Rocio T. Aliaga, Framing the Debate on Mandatory Continuing Legal Education (MCLE): The District of Columbia Bar’s Consideration of MCLE, 8 Geo. J. Legal Ethics 1145, 1151-52 (1995).

17. MacCrate Report, supra note 6 at 3 (“The skills and values of the competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience, and continues throughout a lawyer’s professional career.”).

18. Cheri A. Harris, MCLE: The Perils, Pitfalls, and Promise of Regulation, 40 Valp. L. Rev. 360, 372 (2006).

19. Id. at 373.

20. Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, Continuing Legal Education for Professional Competence and Responsibility: The Report on the Arden House Conference (1959) [hereinafter Arden House I].

21. Id. at 7.

22. Id. at 70.

23. Id. at 3.

24. Id. at 8.

25. Id. at 60.

26. Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, Arden House II: Toward Excellence in Continuing Legal Education 21 (1964) [hereinafter Arden House II].

27. Arden House I, supra note 20, at 148-49.

28. Id. at xiv.

29. Id. at 22.

30. Arden House II, supra note 26, at 35.

31. Id.

32. Id.

33. Ali-ABA Committee on Continuing Professional Education, CLE and the Lawyer’s Responsibilities in an Evolving Profession, The Report on the Arden House III Conference 12 (1987) [hereinafter Arden House III].

34. Id.

35. Id. at 15.

36. Id. at 5, 17.

37. Id. at 5.

38. Id. at 20-21.

39. Id. at 226.

40. Id. at 233.

41. Id. at 225.

42. Id. at 24.

43. Id.

44. For the absence of evidence, see David A. Thomas, Why Mandatory CLE is a Mistake, 6 Utah Bar J. 14 (1993).

45. Task Force on Mandatory Continuing Legal Education, Report to the Board of Governors of the District of Columbia Bar 33 (1995) [hereinafter DC Task Force Report].

46. Id. at 59.

47. State Bar of California, MCLE Evaluation Commission Report 15 (2001); Aliaga, supra note 16, at 1153 (discussing DC bar report finding).

48. Chrisi Harlan, Continuing Law Education Faulted by State Bar Groups, The Wall St. J., Oct. 12, 1988, at B1 (quoting Francis Musselman).

49. Stuart M. Israel, On Mandatory CLE, Tongue Piercing and Other Related Subjects, State Bar of Michigan Labor and Employment Lawnotes 4 (Spring 1999), available at https://www.michbar.org/labor/pdfs/99spring.pdf (quoting J. Thomas Lenga, Minimum Continuing Legal Education—Not Your Father’s Oldsmobile, Labor and Employment Law Notes 2 (Spring, 1999)).

50. See Thomas, supra note 44, at 14 (describing Utah committee deliberations).

51. Paul W. Wolkin, On Improving the Quality of Lawyering, 50 St. John’s L. Rev. 523, 544, n. 82 (1975) (citing attendance rates ranging from 5 percent to 66 percent ); Cheri A. Harris, MCLE: The Perils, Pitfalls, and Promise of Regulation, 40 Valparaiso U. L. Rev. 359, 370 (2006) (less than half of Ohio and Colorado lawyers were regularly attending CLE before requirements were implemented); J. Thomas Lenga, Minimum Continuing Legal Education—Not Your Father’s Oldsmobile, State Bar of Michigan Labor and Employment Lawnotes 2 (Spring 1999) (citing research suggesting that 35 to 50 percent of Michigan lawyers do not take continuing legal education courses); Molly McDonough, Mandatory CLE Again Rears its Pointy Little Head, Chicago Daily L. Bull., May 15, 1988, at 1 (fewer than 30 percent of Illinois lawyers attend).

52. D.C. Task Force Report, supra note 45, at 37-8.

53. Jack W. Lawson, Mandatory Continuing Legal Education and the Indiana Practicing Attorney, 40 Val. U. L. Rev. 401, 406 (2006).

54. Lisa A. Grigg, The Mandatory Continuing Legal Education (MCLE) Debate: Is It Improving Lawyer Competence or Just Busy Work?, 12 BYU J. Pub. L. 417, 427 (1998).

55. Alan Ogden, Mandatory Continuing Legal Education: A Study of Its Effects, 13 Colo. Law. 1789 (1984), reprinted in 3 J. Prof. Legal Educ. 3 (1985-86) (estimating that if the average cost of CLE were $20 a credit hour, a dubious assumption if lawyers’ time were also valued, then the out of pocket cost passed on to the client would be 60 cents an hour). But see Paul-Noel Chretin, The Bar’s Back-to – School Scam, Wall St. J., Jan. 17, 1996, at A15 (estimating an annual cost to the public of a “staggering $350 million a year.”). The DC Task Force acknowledged that the financial burdens of MCLE could be serious, particularly for pro-bono or low-bono lawyers and offered several proposals, such as free access and development of in-house programs, to address the issue. DC Task Force Report, supra note 45, at 48-9.

56. Aliaga, supra note 16, at 1160-1161; Thomas, supra note 44, at 14 (describing report by Utah bar).

57. Ogden, supra note 55, at 10. The DC Bar task force concluded that the best justification for MCLE was the enhancement of the profession’s public reputation: “We think the core justification for MCLE lies in the manner in which the legal profession holds itself out to the public at large. [….] We believe that bargain of trust [between the profession and the public] carries with it an obligation of collective responsibility as a profession to take appropriate measures to assure that commitments to the basic ethical duties we embrace are honored on a timely basis by all of our members.” DC Task Force Report, supra note 45, at 34, 38.

58. Chretien, supra note 55, at A15 (quoting DC bar report).

59. See Lenga, supra note 51, at 2 (referring to medicine and accounting).

60. State Bar of California, MCLE Evaluation Commission Report, supra note 47, at 10, 15, discussed in Lawson, supra note 53, at 405.

61. Kathleen H. Lawner, Survey of Lawyers’ Continuing Professional Education Activities After Law School, in Arden House III, supra note 33, at 375, 414.

62. See Ogden, supra note 55, at 6; Power and Conflict in Continuing Professional Education 216 (Milton R. Stern ed., 1980).

63. Ogden, supra note 55, at Appendix H.

64. State Bar of California, MCLE Evaluation Commission Report, supra note 47, at 6. However, in a bar journal survey in which lawyers wrote in responses, two thirds of respondents said that CLE should not be mandatory. However, the Report discounted those results because self-selection in responses tends to favor those with strong usually negative opinions. Id.

65. Lawner, supra note 61, at 389 (a majority of respondents felt that participation in CLE had helped improve the quality of their work); Amy Boardman, The MCLE Success Story; Kinks Ext But 7-Year Experiment Works, Tex. Law., May 3, 1993, 32 (discussing Texas finding that 84 percent of Texas lawyers believed that their competence had increased as a result of CLE); Brent V. Manning, In Favor of Continuing Legal Education in Utah, 6 Utah B. J. 16 (1993) (survey finding that 78 percent believed that their competence was enhanced significantly or somewhat by CLE participation).

66. Friday, supra note 3, at 508. The DC Bar Task Force answered this criticism by asserting that such empirical evidence is likely impossible to gather: “If the sole measure of lawyer competence is the ultimate quality of legal services delivered to the client, then the pursuit of meaningful empirical data on the relationship between MCLE and competence is likely to meet a number of conceptual hurdles, which, as a practical matter, may be insurmountable.” DC Task Force Report, supra note 45, at 60. The Task Force approached the question both by looking at alternative sources of evidence (such as opinion) and by narrowing the focus onto the knowledge component of professional competency. Thus, the Task Force stated the empirical question as whether the proposed MCLE regime would “enhance lawyers’ knowledge in the fields within which they practice?” Id. at 68. The one empirical study attempting to answer that question, from a committee of the Michigan State Bar, did confirm some short – and long-term gains in knowledge but, as that committee itself noted, the results were “disappointing.” Id. at 70 (quoting The State Bar of Michigan Standing Committee on Continuing Legal Education, Triannual [sic] Report on Rule 17 to the Michigan Supreme Court and State Bar Board of Commissioners (1993)). In spring of 1994, the Michigan Supreme Court rescinded its MCLE requirement. Id. at 25, n.10.

67. Paul A. Wolkin, On Improving the Quality of Lawyering, 50 St. John’s L. Rev. 523, 529 (1976).

68. Donald S. Murphy & Thomas Schwen, The Future: Transitioning From Training Lawyers to Improving Their Performance, 40 Valparaiso U. L. Rev. 521, 524 (2006); James C. Mitchell, MCLE —The Joke’s On Us, 36 Ariz. Attorney 27 (Aug./Sept. 1999); Douglas Shaw Palmer, Why the CLE Board Should Allow Credit for Self – Study, Wash. State Bar News, June 1985, at 17.

69. Barbara A. Bichelmeyer, Best Practices in Adult Education and E-Learning: Leverage Points for Quality and Impact of CLE, 40 Valparaiso U. L. Rev. 509, 512, 511; Wolkin, supra note 67, at 545.

70. Plato, The Republic, Book Vii, 423 (Classics Club ed. 1942).

71. Wolkin, supra note 67, at 529.

72. Id. at 525.

73. William S. Stevens, Ethics and CLE, Phil. Lawyer, Winter 1993, at 27. The Michigan study, focused on comparing the short – and long-term knowledge of lawyers who had participated in MCLE against lawyers who had not, showed a statistically significant increase in long-term knowledge and a slight, but not statistically significant, increase in short-term knowledge. As the Michigan bar committee noted, although the results were favorable, the study contained flaws and the improvements shown were less than would be expected based on educational norms. DC Task Force Report, supra note 45, at 70 (citing The State Bar of Michigan Standing Committee on Continuing Legal Education, Triannual [sic] Report on Rule 17 to the Michigan Supreme Court and State Bar Board of Commissioners (1993)).

74. Wolkin, supra note 67, at 530; David A. Garvin, Learning in Action: A Guide to Putting the Learning Organization to Work (2000); M. David Merrill, First Principles of Instruction, 50 Educ. Tech. Res. & Devel. 43, 44-45 (2002); S.D. Brookfield, Understanding and Facilitating Adult Learning: A Comprehensive Analysis of Principles and Effective Practices (1986).

75. Dave Davis, Impact of Formal Continuing Medical Education, 282 JAMA 867, 870 (Sept. 1, 1999). See also D.E. Kanouse & I. Jacoby, When Does Information Change Practitioner’s Behavior?, 4 Int’l J. Tech. Assessment in Health Care 27 (1988).

76. Wolkin, supra note 67, at 530.

77. Ogden, supra note 55, at 13. The ABA’s most recent report on legal malpractice claims breaks down the types of claims by activity. In “Administrative Errors,” 30.13 percent of claims, the most claims were based on “Procrastination in Performance / Follow Up” (9.68 percent). The second greatest number of claims was based on “Lost File / Document Evidence” (7.05 percent). In “Client Relations,” 14.61 percent of claims, the most claims were based on “Failure to Obtain Consent / Inform Client” (7.02 percent), followed by “Failure to Follow Client’s Instruction” (5.71 percent). However, under “Substantive Errors,” 45.07 percent of all claims, “Failure to Know / Properly Apply Law” was the greatest percentage of claims at 13.57 percent. This was the most common type of error alleged during the period of the study. ABA Standing Committee on Lawyers’ Professional Liability, Profile of Legal Malpractice Claims 2008-2011, Table 5 (Sept. 2012).

78. Deborah L. Rhode, David Luban & Scott Cummings, Legal Ethics 301-302 (6th ed. 2013). Jenna Greene, A Muted Trumpet, Nat’l L. J., Mar. 18, 2013, at A4; Eve Brensike Primus, Not Much to Celebrate, Nat’l L. J., Mar. 18, 2013, at 26. A.B.A Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice 7-14 (2004).

79. Israel, supra note 49, at 3.

80. James C. Mitchell, Colossal Cave-In: Why Reform of MCLE Was DOA, 37 Ariz. Attorney 36 (2001).

81. For examples see Carrie Dolan, California Lawyers, Required to Study, Study at Club Med., The Wall Street J., May 21, 1992, at A1; George M. Kraw, Classroom Capers, San Francisco Daily J., Jan. 7, 1997, 4; Ogden, supra note 55; Grigg, supra note 54, at 429.

82. Thomas, supra note 44, at 14.

83. Thomas, supra note 44, at 15; Jack Joseph, Mandatory Continuing Legal Education— An Opponent’s View, Ill. Bar. J., Jan. 1997, 256, 258 (noting that voluntary systems that fail to present effective programs will have empty classrooms).

84. Thomas, supra note 44, at 15.

85. See New York City Bar Association Task Force on New Lawyers in a Changing Profession, Developing Legal Careers and Delivering Justice in the 21st Century 63 (2013), (noting programs of uneven quality with little interaction and no follow-up); Mitchell, supra note 80 (criticizing courses). State Bar of California, MCLE Evaluation Commission Report, supra note 47, at 12 (noting that in telephone poll, 40 percent of respondents rated the availability of programs in their field at the appropriate experience level as average or poor, and in a bar journal survey, half of respondents rated MCLE courses as unsatisfactory).

86. State Bar of California, MCLE Evaluation Commission Report, supra note 47, at 14.

87. For a model program, see Murphy and Schwenn, supra note 68, at 538 (describing training program for public defenders).

88. New York City Bar Association Task Force Report, supra note 85, at 64-65.

89. See Jennifer Smith, New Paths Sought for Young Lawyers, The Wall Street J., Nov. 14, 2013, at B3; Arden House I, supra note 20, at 6, 70.

90. Many states, California being a notable exception, impose specific new lawyer CLE requirements. These range from comprehensive and involved, often requiring mentoring of some kind (New York, Illinois) to relatively minimal (Virginia and North Carolina require new admittees to complete a “professionalism course”). See The Legal Profession: Continuing Legal Education, FAQs for Newly Admitted Attorneys, NYCourts.gov, available at http://www.nycourts.gov/attorneys/cle/newattorney_faqs.shtml (last visited Feb. 13, 2014); Continuing Legal Education, Newly Admitted Attorneys, Illinois State Bar Ass’n, http://www.isba.org/cle/newadmittees (last visited Feb. 13, 2014); New Virginia Lawyer and MCLE FAQs, Virginia CLE, http://www.vacle.org/newlawyerfaqs-pg130.aspx (last visited Feb. 13, 2014); New Attorney Professionalism Requirement, North Carolina Continuing Legal Education, available at http://www.nccle.org/ (last visited Feb.13, 2014).

91. Jeremy Perlin, Special Recognition, ABA J., May 1998, at 76.

92. See N.Y. App. Div. R. of Court §1500.222 (2000). See also John Caher, State Board Adopts CLE Rules Allowing for Pro Bono Credit, N.Y. L.J., Mar. 6, 2000, at 1. See Colo. R. Civ. P. 260.8(1).

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