Is Continuing Legal Education A “Farce”?

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.

This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!

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.

 

 

17 thoughts on “Is Continuing Legal Education A “Farce”?

  1. I know nothing about him, so this might be unfair, but from his discourse he (Sherman) sounds to me like a nasty, arrogant selfish pig of a professional who urgently needs some ‘development’. I know requirements for continuing education can be irritating ( we call it CPD) but for me and our profession (actuary) it is an i portant part of holding the profession together. Our motto (Institute of Actuaries UK) is the well known observation from Frances Bacon : “I hold every man a debtor to his profession”. That means something : you have to be ready to give back, as almost certainly others gave (and hopefully still give) to you. If you’re not prepared to contribute in a collegiate fashion to your profession, and are only in it for the money, then you’re not a professional in my book.

    So Mr Sherman, you may know everything there is to know about your practice area (although somehow I doubt it) but how about sharing some of that brilliance with those coming along behind you? How about listening to others working in your area and getting involved in constructive debate? CPD, or your CLE, should not in a professional body be primarily about ‘being taught’. It should be about sharing.

  2. It seems that required continuing education among most professions / technical occupations always gets a mixed reception from practitioners. It usually follows a bell curve with a small number of reluctant cynics on one end and a small number of enthusiastic participants on the other, with the remainder distributed in the middle. I was a law enforcement trainer for more than twenty years, and had frequent contact with trainers from many fields through the area ASDT chapter. Commonly, the issues facing trainers -including required continuing education- exist across professional / occupational lines. Absent an effective ongoing training program, it is very difficult for any practitioner to keep up with changes in laws and regulations affecting their field, much less keep abreast of evolving best practices and revisit foundational principles like ethics. A commitment to any profession means dedication to learning for the duration of one’s practice of that profession. Any professional who seriously believes that he or she “has arrived” to the point that continued learning is unnecessary has crossed an ethical line leading to obsolescence and irrelevance, if not incompetence. As far as the integrity of training programs is concerned, a robust development process from assessing needs to establishing and maintaining authentic assessment methods is an absolute necessity. These are continuing struggles for training professionals in every field with which I am familiar.

    • In order to maintain a CPA designation, we’re also required to account for a certain amount of professional development time, but the rules on our time are MUCH looser than the legal CLE program… Some of my peers count the time they use in preparing for their AGMs as development hours, an argument I find…. novel, but CPA Canada apparently doesn’t reject. I agree with Jack, I doubt that CPA actually want to know if the requirements actually accomplish anything, I think they just want to be able to advertise a well regulated-competency structure.

      One of my complaints with the program is that even if you approach the requirement honestly, in some years, depending on what’s happening, it’s hard to find even reasonable contrivances to fill in the blanks, and then other years, we have to by necessity blow our targets out of the water. When Canada started shifting from GAAP to IFRS I probably read enough material to make up three years requirements. We continue our education by necessity, and everything else is a fig leaf.

  3. When I was a pharmacy technician, we were required to complete multiple different requirements of CE. It has always been a farce for technicians. Technicians are not allowed to suggest anything to anyone at any time. They are not allowed to discuss anything at all concerning any medication or interaction or suggestion. They are technically not allowed to suggest ways to get your children to take their antibiotics or anything else for that matter. Yet! They are required to take 20 hours of CE every 2 years with several hours in law, medications, and interactions. And every year technicians must do HIPPA recertification.

    I believe CE has a perfectly good use and has a great idea behind it. I just believe that the requirement in certain areas is redundant or ridiculous. A constitutional lawyer complaining about taking CLE in other avenues of law is, quite frankly, stupid. I would imagine broadening ones mind and exploring more linguistic variations would increase ones savviness to understand what is put before them.

    I honestly learned more through practicing as a technician than I did in any CE. It was all knowledge that did not actually pertain to my job and could not ever be utilized, and so it became forgotten knowledge quickly. I figured it was always a niche in the CE world of inanity.

  4. Interesting. I would have though you would have indicted the practice of requiring paying for courses that the state bar creates and markets.

    I worked in economic development/business incubation for 16 years both had organizations that created CLE. It was not long before they both realized they could coerce more money out of members by creating a professional certification designation requirement and then pushed that certification as minimum employment requirement for economic development or business incubation management.

    Some are merely money making rackets.

  5. I guess I am an outlier. I am very familiar with my ethics rules. My partners call me the “Ethics Department” in our firm.

    And, I don’t so much mind the CLE requirements. I am a general practitioner, so it can be very difficult to stay competent at times. Being forced to take a bunch of classes gives me the forced “luxury” of setting aside time to not work and get a refresher on the basics, as well as recent changes. So, I don’t mind the requirements because I can always find interesting courses. But, then, the materials just sit on a shelf, unless I make a point to review them instead of inquiring of colleagues.

    My jurisdiction also requires 3 Ethics credits. I don’t know if that is typical.

    The requirements are almost useless for a couple of our attorneys. They practice almost exclusively in immigration law. They keep up on developments as they take place and can get all they need from an annual conference, if necessary.

    -Jut

  6. The thing about ethics is, you have to know it yourself. The client brings you his or her story, issues would arise even if you had no legal training at all. The ethical side, though, has to come from your own brain, because the client can’t know if something’s interfering with your ability to represent him or her.

  7. My company does CLE trainings for free — it shows off our expertise and attracts clients. I probably sit through 30 or so a year. To make CLE credits meaningful, attorneys should have to take classes in their primary or secondary practice areas. Also, the bars should provide them at no cost — we do pay hefty licensing fees each year. I have never understood exactly what they do with my money.

    • Some bars do provide them for free. Rhode Island, for example. I agree with you. The problem is that then they do with volunteers rather than professional trainers. Some volunteers are good, and some are terrible.

  8. As a paid income tax preparer, there is an annual CE requirement, including 3 hours on tax updates and 2 on ethics. My employer charges a $20 per year fee that encompasses all the CE and other course we want to take. It’s to their benefit as well as ours, as many of those courses are important to us in increasing our certification levels.

    All of these courses have some sort of examination at the end which may or may not be too arduous. On the other hand, outside courses that I’ve taken online have only test questions that prove you’re online and paying at least minimal attention to the speaker.

    The ethics requirements are, in large part, related to elements of the tax law that have been subject to widespread abuse over the past 4 decades,m and the law now requires paid preparers to do some degree of due diligence when claiming these credits (on pain of some hefty fines assessed against the individuals preparers personally).

  9. I have been in practice for more than 40 years and I find CLE classes very helpful. I use Rutter Group and try to take as many courses as possible — far more than I am required. Why more? Because for the most part, I learn a lot. The quality of courses has improved over the years which makes me feel that I am receiving a decent return on investment.

    I do not take the CLE to learn more about my own specialties — thinking that CLE is for the areas with which one deals daily suggests the attys who are making that silly argument need a refresher course in basic logic. One reason I like learning about other areas is that often I need to spot issues in related areas and these courses help me stay attuned to when I MAY not know something.

    I find the Update Courses in all fields including my own to be helpful for two reasons: (1) In general civil procedure, the ferkata courts are always fiddling with stuff which seldom if ever benefits the attys or even makes sense. The E-filing system for LA county superior courts was designed by goniff-schendricks. (2) in my areas of practice, I like to hear what others who specialize have to say about the new cases. We do not always agree.

    I find the on-line courses far more beneficial. Partially this is so as I am elderly and sitting through an in-person course is physically hard, but also when at home, I can stop the program, make notes on cases files, look at a case, and then go back to the course. If my mind takes brief unscheduled vacation, when it returns, I can scroll back and see what it missed. Also, I do not have to mortgage the house to pay for LA parking or waste my few remaining years in LA congestion.

  10. It seems that the (legitimate) problem he has is that the CLE requirement doesn’t do anything useful unless you want it to. Because of this, he is correct in saying that part is a farce. The people who want to learn new relevant material will do so and those who don’t won’t. If the state bar had a curriculum with material that they know lawyers don’t understand properly (ethics) and new updates to the law, perhaps it would make the CLE more useful.

    I belong to a gun club. Every year, we are mandated to attend a safety briefing to go over the range rules. Each year, they skim over the old rules (you should know those) and focus on new rules and rules people break often. It can be quite illuminating. I saw the new rule “no driving on or over the berms” and wondered how that rule became necessary. My question on the subject was not answered.

    • I saw the new rule “no driving on or over the berms” and wondered how that rule became necessary. My question on the subject was not answered.

      Sort of like the “do not insert e-cig battery into the rectum.”

      Somebody had to have done it, and sued.

  11. I’m glad to see a vigorous defense of cles, whic I find invaluable. No lawyer that I know – not a single one – chooses a class on the basis of price (timing is a different issue – especially in December – you will see a lot of mergers and acquisitions lawyers taking family law seminars).

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