Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.
AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all, charge for.
Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.
Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.
Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):
Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.
To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!
Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.
First the verdict on Sherman’s discourse, which is that he needs to take some CLE courses on legal reasoning and advocacy. There is a valid case to be made against CLE, but he doesn’t make it. His “big social costs” argument especially is nonsense, and I assume most lawyers know it’s nonsense.
I bill about the Virginia average for my time as an ethicist. When I was running my professional theater company for peanuts, that is, mostly no compensation at all, it probably took up (conservatively 20 hours a week, more if I was directing a show.) Was all of that lost billable time? Was I losing about $7,000 a week for 20 years? No, of course not. In fact, I don’t know if I ever lost any billable time: I just worked 70-80 hours a week. During the baseball season, I watch almost every Boston Red Sox game, 162 of them. They average three hours a game, so a baseball season costs me $170, 100, according to Sherman. And think of what sleeping costs me!
His is an intellectually dishonest argument, or its an intellectually indefensible argument. No “value” has been destroyed. If I wanted to be mean, I would suggest that the fact that a Virginia lawyer would think such a silly theory is persuasive is a stronger argument against the efficacy of mandatory CLE than the theory itself.
As for the rest of it: blechh. “Just about every lawyer he knows” is just doing with this form of education what so many students in college do with theirs: seek easy courses and do as little as possible to get a diploma. That lawyers game the system is not an indictment of CLE but of lawyers themselves.
What is really wrong with mandatory CLE is this: it has no integrity. There is no data that shows the CLE improves lawyer performance, and when I addressed the American CLE Association (ACLEA), I suggested that the industry didn’t want to know if their product worked or not. Providers are now increasingly moving to on-line and video courses, though there is data that shows that live presentations convey information better and more memorably.
In addition, no CLE attendee is ever tested on what, if anything, he or she learned. So lawyers can sit dreamily in the seminar room, with visions of sugar plums dancing through their heads along with fantasies about large-breasted women and goats in tutus, and nobody will ever know. They still get the credit.
In the area of ethics CLE, however, I can say with certainty that the courses are not a farce. Lawyers almost never read the ethics rules, nor the legal ethics opinions that bar associations periodically issue. Though Sherman may not have grasped this, ethics are essential to every practice, and lawyers do not keep up with the field. I often ask who has read their jurisdiction’s rules recently. The result is less than 10%. Even fewer of them read the legal ethics opinions, and a depressingly small percentage are aware of new rules and important new developments. At least the ethics seminars they have to attend force them to think about legal ethics for a few hours, which is better than nothing. If a few lawyer ethics alarms go off because of something covered in my seminars—and I know for a fact that more than a few do—then that continuing education, at least, is not a farce.