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January 4, 2004

No Bull, Lawyers Need CLE

Filed under: pre-06-2006 — David Giacalone @ 11:59 pm


mouse reading   Spitbull suggested in a New Year’s Day post that lawyers don’t need Continuing Legal Education (CLE).  She says:



“Once you’ve been practicing a few years you already know enough in your field of practice to teach the classes yourself (I co-taught my first class in my first year of practice) and you shouldn’t be practicing outside of your field anyway (a few measly CLE’s don’t suddenly make you a good lawyer in a new area of law). Non-lawyers complain about things like greed, boorish behavior and obtuse writing, not lack of legal knowledge.

While I agree with Spitbull that (1) we need to improve the process of removing (or punishing) lawyers who practice in areas where they aren’t competent; and (2) we need to do a lot more to “stop lawyers from being greedy and acting badly [and writing poorly],” I totally disagree with her assessment of mandatory CLE. 

 

Likewise, I must dissent from the Sunday sentiments of the usually less strident Carolyn Elefant of MyShingle, who grouped CLE into her category of Stupid Bar Rules (SBRs) — calling it “a costly waste of time which could be satisifed on the cheap by merely requiring lawyers to follow a blawg or two.”   I’m certain that the great state of Maryland allows alternative methods for satisfying CLE requirements, such as audio and videocassette programs, CDs, CD-ROMS, and other computerized programs.  They would probably also entertain allowing an attorney (or group) to satisfy CLE requirements through the creation of a weblog on a CLE topic.

 

Despite Spitbull’s assertion, plenty of clients do complain about lawyer incompetence, and many fail to complain because they have no way to judge the competence of their attorney.   The 1986 ABA “Stanley Commission” Report’s definition of a profession aptly states the issue (emphasis added):



[A profession is an] occupation whose members have special privileges, such as exclusive licensing, that are justified by the following assumptions:


1. That its practice requires substantial intellectual training and the use of complex judgments.


2. That since clients cannot adequately evaluate the quality of the service, they must trust those they consult.


3. That the client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good, and


4. That the occupation is self-regulating — that is, organized in such a way as to assure the public and the courts that its members are competent, do not violate their client’s trust, and transcend their own self-interest.”   [quoted here, at 10]


As usual, my chief concern is for the “little guy or gal” client, who are not using high-powered, elite lawyers.   Many of those clients have no way to judge the capabilities of a lawyer before or after their matter is completed.   As was stated in the NYS Committee on the Profession and the Courts, Final Report to the Chief Judge (Nov. 1995) (at 27): 



A lawyer’s obligation to continually hone professional skills and keep abreast of developments in the law is a central element of professionalism. Notwithstanding the many educational programs available to the bar and judiciary, practitioners, judges, clients and grievance committee counsel each identified incompetence as a substantial deficiency within the profession.    For this reason, the Committee endorses previous proposals for the adoption of a mandatory continuing legal education requirement.”


Many lawyers will be in practice for 40 to 50 years after graduating from law school. [Indeed, many elderly lawyers will need both competency and competence tests.]  To leave it up to the individual lawyer to stay abreast of changes in the law, and to adequately prepare to expand into new areas, is totally unrealistic.  The sloths and shirkers are quite pleased when the fraction comprising the profession’s highly-competent and motivated attorneys assumes that everyone is as diligent and responsible as they are, or they just don’t care about the clients served by the lower percentiles of the profession. 


coffee cup   We can’t pretend to be a “learned profession” while letting our members stop all supervised training after three years of schooling.  I’ve seen far too much incompetence (as a law clerk, attorney advisor, general and family practitioner, supervising attorney, hot-line advisor, and mediator) to believe there is no serious problem.  And, I’ve seen too much of the disciplinary system to believe that vigorous oversight will ferret out incompetence lawyer by lawyer, except in the most egregious cases and with savvy clients.  Mandatory legal education is not a perfect solution, but it sure beats allowing the profession to ignore the failure of many of its members to acquire and maintain competence in the areas in which they choose to practice.



  • I have argued elsewhere and often that lawyers must be both competent and diligent, if the client’s needs are to be adequately served.  Spitbull is right that we need to instill some diligence.  Some well-publicized disciplinary actions would help, but CLE ethics sessions that strongly impress upon lawyers what it means to practice with diligence would also be very helpful, and would put attorneys on notice. 
  •  In February, 1997, American Bar Association President N. Lee Cooper issued his Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families.”  Cooper’s working group found that:  “In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient.”  To alleviate those problems, Cooper called upon state and local bar leaders to sign a pledge that “We will work to establish clear standards for attorneys in the representation of children, parents, and child protection agencies in child abuse and neglect cases (and related termination of parental rights and adoption cases), including clarifying basic ethical obligations of diligent representation by attorneys in these cases, such as obligations to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.”  You don’t have to be as cynical as your Editor to marvel that any member in good standing of any state’s bar needs such clarifications — but, believe me, they do.  

CLE might not be a panacea, but it just might be a kick in the pants.  If the quality of CLE is low where you practice, then consider it an opportunity to put together a better product — it would be a good way to serve your profession and the public, and perhaps create a name and a network that will help your career.


Whatever you do, stop whining about CLE.  The coffee’s getting better, and the pastry, too. 


Update (01-06-04):  Spitbull responds here to this post.   She correctly points out that CLE is not a certain method for assuring competence, but it’s hard to imagine ever achieving a system that could make every lawyer in America (over a million of them)competent.   It would take a revolution to achieve re-certification or specialty testing, and there will never be enough money or will to create effective competency policing.   Check our Discipline Resources to see just how badly the system needs improvement, and a few modest suggestions for reform. 

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