The MCLE question no one wants to ask

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Here’s a conversation I sometimes like to imagine, between an elected official in the government and a representative of a state bar or law society.

“So, I understand that law is a self-governing profession, and that you’re the governors.”

“That’s right.”

“I assume you know that self-regulation is a privilege, and that the government allows you to oversee various matters that would otherwise fall within our jurisdiction.”

“Of course. Lawyers’ independence from government is critical for us, so we’re zealous about regulating ourselves, in the public interest, to maintain it.”

“How does that work in practical terms, though? For instance, how do you make sure lawyers are competent enough to serve their clients?”

“We’ve instituted mandatory continuing legal education, or MCLE. Lawyers must complete a certain amount of post-call education every year.”

“Do you mandate specific courses lawyers must take or skills they must learn?”

“No, we generally allow lawyers to choose courses based on their own interests.”

“I see. Do you test them on what they’ve learned in these courses?”

“Well, no. But they always receive binders of materials that they can bring back to their offices.”

“Uh-huh. How do you know they’ve even attended these courses?”

“Well, they report it in their annual filings. But they wouldn’t lie about that. They would risk serious discipline if they were found out.”

“Okay, let me ask you this: Let’s assume every lawyer in your jurisdiction completes the full amount of CLE you prescribe every year. Does it work?”

“Does what work?”

“Does mandatory CLE work? Does it ensure that your lawyers are competent? Are there studies establishing that MCLE verifiably improves the quality of legal service by lawyers?”

“Uh, none that I’m aware of.”

“No? Do you mean in this jurisdiction only, or in any jurisdiction?”

“Er, any jurisdiction, really.”

“Alright, let’s back up. How about ordinary CLE, the non-mandatory kind: are there any studies proving that taking CLE is directly and causally related to maintaining or improving lawyers’ competence?”

“[long pause]….”

You see my point. There might be jurisdictions where the MCLE requirements are stronger and more specific than what I’ve hypothetically described above, but if so, there aren’t many. The foregoing conversation is quite plausible — frighteningly so, if you’re a regulator.

Mandatory CLE is the rule in 44 of 50 US states and in eight Canadian provinces, although curricular and reporting requirements vary across jurisdictions. In every state and province, however, the original impetus for mandating CLE was the same: we need to ensure lawyers are up to date on the law in their areas of practice, thereby maintaining lawyers’ competence and fulfilling our self-regulatory requirements. At least, that’s what I assume: I’ve not been able to find a really fine statement of MCLE’s purposes on the website of any legal regulator that imposes it.

Generally, the reasoning in support of MCLE seems to be implicit: CLE makes you a more knowledgeable lawyer, which makes you a better lawyer, and we want to mandate better lawyers. QED. It’s a great idea, obviously. But is it true? Does requiring lawyers to take a minimum amount of CLE every year make them better at what they do? Intuitively, one supposes that it does, but intuition is not evidence in any court. Can it be proved? Has it been proven?

I’ve spoken with some of the smartest minds in lawyer professional development and asked them if they’ve ever seen a study showing conclusively that MCLE is causally connected (or even strongly correlated) with lawyer competence. None of them has. Nobody, as far as I can tell, has published a study proving that even ordinary, voluntary CLE produces better lawyers. The benefits of CLE can be reasonably assumed, but apparently that’s all they are: an assumption. And mandatory CLE is an assumption squared.

If you want an excellent example of how messed up the legal profession has become over MCLE, read this report of the Supreme Court of New Jersey that led to the state becoming the 44th to approve MCLE in 2007 (HT to Michael Williams). Here’s how the report dispensed with the threshold questions of MCLE’s necessity and effectiveness: “[W]hat reasons, other than the absence of empirical data, mitigate against making CLE mandatory? We have found few, if any.” I’d love to see the reaction of a New Jersey Supreme Court judge to a factum that included this line of reasoning in its arguments: “We have no empirical data to support our position. But there is very little, if any, evidence against it, so we ask this court to rule in our favour.”

I can think of three significant reasons why no one has successfully demonstrated a causal link between MCLE and lawyer competence.

1. It’s very difficult to measure competence. And even more difficult, for that reason, to measure increases or decreases therein. I’ve written before that competence testing in the law tends to be forensic: we find out which lawyers are incompetent only after they wreck a client’s case or their own careers. But defining “competence” for a lawyer is extremely tricky: what standards do you use? Should those standards vary according to practice area, year of call, degree of oversight or autonomy, geographic location, sophistication of clients? How do you test for competence? Who pays for the process? None of these questions has an easy answer. But they are all good questions, and the public whom lawyers serve has a right to know that they’re at least being asked, if not answered. As far as I can tell, the legal profession is not even asking.

2. It’s in nobody’s interest to question MCLE. Continuing legal education is big business, and some of the most heavily invested players in the market are regulatory bodies. The people who decide that lawyers must take CLE are often the very same people who sell CLE to lawyers, which by any standard is a glaring conflict of interest. Many voluntary bar associations are kept afloat in part by CLE revenue, and they view MCLE as manna from heaven. And frankly, lawyers themselves, even though they might not love MCLE, have learned to live with it by gaming the system: sitting in the back of the room checking emails during a lecture, or logging in to an online CLE session and doing billable work with the sound off. It’s a reasonably cozy arrangement.

3. There isn’t any causal link between MCLE and lawyer competence. We might as well get that out there.

None of this may be new, although I’ve seen very few people talk about it openly. But the problem remains: what could a regulator say if a legislator started asking the questions at the start of this post? Should CLE be mandatory? If so, why? How should it be structured, and how should its effectiveness be measured? Here are my suggestions for dealing with this issue:

1. Attend to the absolute basics. A regulator should ask itself:  ”What must we ensure that lawyers know, and can do, in order to maintain baseline professional competence that satisfies the standards of self-governance?” Regulators can answer that question, I think, by looking at where lawyers make the most mistakes, and start there. Every regulator and/or professional insurer keeps close track of the nature and cause of complaints and malpractice claims against lawyers. It is well-known that “knowledge of the law,” the subject of 90% of all CLE programming, is nowhere near the top of the list. Generally speaking, here’s where lawyers are getting in trouble:

  •  Failing to establish clear expectations at the start of the client relationship.
  •  Failing to keep clients informed on a timely basis.
  •  Failing to respond to client inquiries in a timely manner.
  •  Failing to identify and avoid conflicts of interest.
  •  Failing to maintain lawyer-client confidentiality.
  •  Failing to ensure security of client information.

Your mileage may vary according to your jurisdiction, but these are the basics that recur state to state, province to province, year after year. Yet I’m not aware of a single jurisdiction that specifically mandates education in these areas, and I’m aware of some that won’t even accredit business- or professionalism-related courses that would cover these topics. Lawyers need to know how to operate a law practice in a viable, ethical and professional manner. If they did, they would commit fewer basic errors and incur fewer penalties. So figure out how many hours would be required to deliver this information, add it up, and there’s your minimum MCLE requirement.

2. Make the knowledge tangible. How do you test this knowledge? Provide lawyers with checklists, templates, protocols and step-by-step processes they can follow to check for conflicts, issue comprehensive retainers, and keep clients continuously informed. Then have them draw up a sample retainer, list the steps involved in checking for conflicts, and describe what they do to keep in touch with clients. Throw in a few other ethics or professional responsibility questions, if you like – every lawyer should be able to answer one or two of those. These are the fundamentals of lawyer professionalism: lawyers can learn them, and their learning can be tested.

3. Monitor the signals of competence. How do you know this is working? Track the number of complaints reduced and malpractice claims reduced year over year. That might not be direct proof of causation, but if the trend lines are strong enough, it would be pretty persuasive correlation. And a really good study would back up the quantitative results with qualitative data derived from focus groups, lawyer interviews, insurance experiences, and so on. Ask yourself: what would the government look at in order to measure improved levels of lawyer competence? They’d probably look here.

There’s a lot more I could talk about in this area — the wisdom and feasibility of mandating substantive-law CLE, the relative merits of online delivery, the best way to teach skills (as opposed to knowledge), the role of private-sector CLE, and perhaps most importantly, rethinking the entire traditional methodology of post-call lawyer learning. But this is where regulators can start, at least, to redefine and reconfigure the profession’s approach to mandatory CLE.

The question nobody in the profession wants to ask about MCLE is, “Does it work?”, because the implications of a negative answer are deeply problematic. I understand that. But we still need to ask the question, and there are ways to answer it that would satisfy any outside inquiry. So let’s ask it already.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.             
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11 Responses to “The MCLE question no one wants to ask”

  1. Paul Wood

    Jordan, eight Canadian provinces have mandatory continuing professional development, including Alberta. Seven are conventional hours-based. Alberta’s is planning-based founded on adult education principles.

  2. Jordan Furlong

    Thanks, Paul — I’ve corrected the post accordingly.

  3. Alli Gerkman

    In 2010, the Colorado Bar Association’s leading publication asked, “Why did you become a lawyer?” One lawyer responded, “I wanted to be required to take 45 units of general CLE and 7 units of ethics CLE every three years.”

    People don’t take CLE seriously. The commoditization of CLE, which moved us from “purpose” to “cash for credits” hasn’t helped.

    That said, there are many people talking about the issues you raise–they’re just not always the people with deep pockets (to fund studies) or regulatory muscle. There’s an opportunity if we can sway funders and regulators and we’ll keep trying. Because, as I said in a presentation a couple of years ago, CLE is not just a mandatory minimum requirement. It’s the future of our profession.

  4. Susan Billington, QC

    Interesting questions Jordan….and yes the Law Society of Alberta has asked many of these very questions when developing its mandatory Continuing Professional Development program. Yes, the Law Society of Alberta has a mandatory CPD program…the difference is that the Alberta program is not based on the inputs of a mandatory minimum hours based program like most of those programs in the 44 United States and now being adopted across Canada.

    Lawyers in Alberta have been making their mandatory annual CPD Plan declarations since 2009 (due on March 15 of each year). 2013 will be the fifth year of operation of the CPD Program. The Law Society of Alberta has recently completed an impact evaluation of the CPD Program which was conducted by Charis Research, an independent consulting firm.
    Alberta’s CPD Program is mandatory but different than the minimum hours approach of other jurisdictions in Canada and the United States.
    Goals for the Law Society CPD programs are:
     To enhance lawyer competence and
     To be accountable to the public for the ongoing professional development and competence of lawyers.
    The Law Society of Alberta set on a course in 2005 to do something different. We weren’t convinced that a “mandatory minimum hour requirement” was the road to meeting the goal of enhanced lawyer competence. As a model regulator acting in the public interest and to ensure public protection, the overall goal needed to be focused on the outcome of increased lawyer competence and the delivery of high quality legal service delivery. Some say that this is goal is too difficult and the outcomes of such a goal cannot be measured. The Law Society retained Charis Consulting for this purpose.
    Alberta’s Continuing Professional Development Program is:
     based on adult educational philosophy and developed in consultation educational psychologists at the Centre for Educational Policy, University of Alberta – Dr. Frank Peters and Dr. Joe daCosta.
    The philosophy is that adult education is:
    o most beneficial when it is self-directed and intentional
    o relates to the professional development of the person
    o fosters a culture of lifelong learning and ongoing professional development
    Goals of the program:
    o to have a meaningful educational program that builds on professional responsibility of lawyer competence both in law and practice
    o to enhance the professional development and competence of the 95% of lawyers who are not engaged in the LSA regulatory systems that is to make good lawyers better
    o to foster and enhance the culture of lifelong learning in the profession.
    The Law Society of Alberta’s Continuing Professional Development (CPD) requirement incorporates a flexible and self-directed learning approach recognizing that most lawyers regularly incorporate CPD into their practices. The goal of CPD program is to ensure that each lawyer in Alberta strives for excellence in their practice through the mandatory annual planning and implementation of an effective continuing professional development plan (CPD plan).
    To achieve this goal, rules on continuing professional development were approved by the Benchers in November 2008. Every active lawyer on or before March 15 of each year must:
    • make and record a CPD plan for the upcoming year;
    • make a declaration to the Law Society that they have made the CPD plan; and
    • retain the CPD plan for 5 years and produce the CPD plan to the Law Society upon request.
    This approach to CPD imposes on each lawyer the individual responsibility for the ongoing maintenance and improvement in the substantive, technical, practical or intellectual components of the practice of law.
    Although there is no mandatory minimum hourly requirement, the annual planning, declaration and implementation of a CPD by active lawyers practicing in Alberta is mandatory.
    The CPD program incorporates a self-directed learning approach to CPD. Like some other CPD programs, the definition of CPD activities goes beyond course programming and encompasses a broad range of educational alternatives and support resources to choose from to incorporate into a CPD plan.
    CPD activities may include: traditional course programming; mentoring a junior lawyer; writing legal articles or papers; teaching a law related subject and other such activities. Lawyers choose the educational activities that meet the requirements of the LSA Rule. In this system, there is no need for accreditation. The lawyer decides those activities they need to meet their professional goals.
    The Law Society of Alberta’s CPD program is a flexible and convenient method to ensure lawyers meet their professional duty of competence (Chapter 2 of the Code of Professional Conduct) and meets the Law Society’s public interest mandate by implementing a regulatory program to ensure the ongoing competence and professionalism of lawyers in Alberta.
    The focus on competence as the outcome of educational programming is growing; that is, does the educational programming result in the enhanced performance or competence of the person engaged in the learning. An example of this approach was recently cited in the Globe and Mail (October 5, 2012) regarding the work of Robert Mendenhall in the United States. In the legal profession, the Federation of Law Societies has developed and adopted entry level competencies for newly admitted lawyers. In New Zealand, the Law Society there has recommended and adopted a competency based CPD program (like the CPD planning philosophy of the Law Society of Alberta’s program). In the UK, the whole regulatory focus is on the outcome of competence and the delivery of competent legal advice and client service.
    The Law Society of Alberta in implementing a competence based philosophy in its CPD Program wants to ensure that the goals of the program are being achieved by the measurement of the outcomes. To this end, Charis Consulting was retained to develop and implement an impact evaluation. Charis employed a variety of research methods into their process including: a survey of members of the Law Society; key informant interviews; random member interviews; a review of a sample of CPD Plans and focus group interviews. The Charis CPD Impact Evaluation concludes that the compliance rate of 99.5% indicates an overwhelming acceptance by our membership of the CPD Program approach and that the impact of the Law Society’s CPD Program is meeting its intended purpose.
    Some of the outcomes of the Charis Evaluation are:
     Across all of the evidence, there are processes in place to realize the desired impact of the Law Society of Alberta’s CPD Program.
     Members support and accept the CPD Program including the philosophy and the CPD Plan implementation
     There is a growing capacity of lawyers to self-evaluate the progress of the CPD activities and learning
     100% of lawyers identified and planned professional development activities
     91% of lawyers followed through on their learning activities as planned
     1/3 of respondents (32%) spent over 50 hours on CPD activities over the last 12 months
     90% spent over 15 hours on CPD activities – over the minimum hourly
    requirement of other CPD programs
    Recommendations:
     Integration of competencies into the CPD planning material available to lawyers
     Develop a competency profile that includes the quality of legal services provided to clients including not only substantive law but ethics, practice management and workplace health/stress issues
     More support to lawyers in the development of their CPD Plans
     Development of best practices in the development of CPD Plans
     Submission of CPD Plans to the Law Society
     Embedding the CPD Alberta website content onto the LSA website
     Review the accountability strategy for the CPD Program
     CPD as a proactive program. Address the perception that CPD Program is only of value to lawyers who are struggling with their practice and irrelevant to lawyers who take their own professional development seriously
     Communicate the outcomes of the evaluation including to stakeholders
    The following comments from focus group participants interviewed by the consultant provide further context and qualitative information regarding the CPD Program impact and outcomes:
    “Of course we shouldn’t have to track hours, how could the same standard possibly apply to an 85 year old lawyer having practiced in the same area, as it does to someone who just got hired on as an associate in their first firm?”

    “I look at my plan a lot from a client perspective. What is the knowledge skill set I need to be a trusted advisor, to give my client the best advice I can? The plan ensures that it is relevant and timely and the client in the end benefits.”

    “There is a social contract to be considered, too. It is about the promise that lawyers will do their job well. This is between the profession and the public and is of critical importance. The best way to prove the efficacy of the CPD Program is to measure public confidence.”

    In conclusion, the CPD Impact Evaluation is encouraging in that the Charis has concluded that the CPD Program is achieving its intended purpose and having the intended impact. Further, Charis has made tangible recommendations to build on the outcomes achieved. The Law Society still has progress to make towards fully developing and implementing a CPD Program that can fully measure outcomes, however, with a program based on continuous learning and professional development goals, our consultant indicates that we are on the right track.

  5. George Wilkinson

    In England and Wales, our Regulator, the SRA, claims on its website that, “Since 1985, we have operated a compulsory continuing professional development scheme (CPD scheme). Over the years, it has evolved into a system guided by the principles of simplicity and flexibility.” In theory all fine and dandy – but there is a huge gap between that theory (and the requirements) and reality. After 36 years in corporate law (although I no longer have to do CPD now as I have moved out of legal practice), my experience is that CPD is not taken seriously (like much else about lawyer competence that we fail as a profession to take seriously – contrast how error is treated by the airline industry, the medical profession and lawyers), and that it doesn’t work.

  6. Mitch Kowalski

    Nice post – as always.

    MCLE obviously leads to better lawyers just as ABS obviously leads to a deterioration in legal service.

    Law societies continue to use flawed logic (based on no data) to justify policy decisions.

    You are right that no judge would accept the unsubstantiated claims Benchers so often use to justify their decisions. Given that most Benchers are litigators, one would think that they would be much better at providing evidence in support their arguments….

  7. Vince O'Brien

    (not speaking on behalf of Minnesota CLE- just my thoughts)- good discussion, with regard to #3 above, it seems to reach the conclusion of “no” causal connection with the same rationale being criticized for the opposite presupposition, there is enough empirical data available to most of us to realize there is a probability of some link for some people and that there may be a greater statistical likelihood of increased competence for a majority or all, based on either the Alberta model (which seems similar to what many education models are requiring of teachers) or the hours approach; this system should evolve, should be studied, but perhaps data should inform either conclusion

  8. Noah Waisberg

    Great post.

    Bar regulators appear to act without evidence on a regular basis. Another parallel example akin to MCLE requirements and Mitch’s ABS example are restrictive rules on foreign educated lawyer admission. All Canadian provinces and nearly all US states have rules requiring a domestic law degree for admission to the bar. As with MCLE and ABS rules, there is not evidence supporting this. And New York State, which has relatively open foreign educated lawyer admission rules, seems to have done just fine with less restrictions.

    Pushing further, is there evidence that law school, or three years of law school is necessary for professional competence? (I really liked law school, and am happy I went but that doesn’t take the questions away.)

  9. Susan Rockwell

    Why is the emphasis on attorney competence to the exclusion of attorney misconduct or unethical behavior? We all know that it was the public outrage about widespread lack of ethics in the legal profession which prompted the mandatory CLEs. While you say that attorneys can chose their own courses, you fail to comment about the fact that a certain number of ethics credits are required. You also overlooked the elephant in the living room in some states that the rules governing attorneys as well as their practical application are badly in need of being updated and revised. Are these rules being applied with justice across the board, or are some lawyers less or “more equal than others”? A high standard of competence and knowledge is required for initial admission to the legal profession. While you seem to be throwing the word “competence” around casually, there should be evidence of an intervening event, such as a brain tumor or evidence of malpractice since licensing that would raise a serious question, rather than a witch hunt questioning everyone’s competence. And when you wrote here of the competence of members of the legal profession, you did so to the exclusion of judges. {Most] judges are lawyers, and likewise capable of the same defects as lawyers. In my opinion, the general public is still more likely to be wary of a lawyer’s ethics, rather than his competence. While the goal and standard in the medical profession is health, that of the legal profession is justice, of course. Just as a physician can discern if a person is ill, a lawyer should be able to discern if the laws of his society and the society itself is unhealthy. Your article did not address how closely the legal profession adheres to or seeks after the justice. Because justice is an elusive but absolute spiritual concept or entity or goal, even when we truly seek it, we always miss the mark by at least a small degree. But, we certainly will not come near true justice, if we deliberately depart from it in our courts. If we emphasize competence to the exclusion of ethics, we run the risk of people unethically being labeled incompetent for unethical reasons. And lawyers do not govern themselves. We are so-call governed by the court and usually its appointees. Often we do not know much about these appointees who are disciplining us: who they are nor who or what is their power base. In the old days it was called “nepotism.” It is still nepotism, but who is not afraid to question those who have the power to take away his/her precious law license? As lawyers, we are expected to know the written and the unwritten rules. And too often the unwritten rules seem to pre-empt the written rules, which are know as laws. If you publish this, please do so in its entirety.

  10. George Beaton

    Jordan, well put.

    When I last looked, MCME, the medical equivalent, is similarly fraught. And it as a longer history and in many ways is more of a matter if life and death than law.

    So…whither MCPE in all professions? For my part let market forces rule – with social media increasing transparency and reducing information asymmetry.

  11. Cecil Caulkins

    Jordan, I’ve been admitted to practice (Missouri/federal) since 1968 and involved in the CLE world since 1977. I’m retired now (since 2004), but it’s reassuring, I guess, that the questions and answers, or lack of them, haven’t changed. As you point out towards the end of your article, the biggest problems lawyers have that get them into trouble have nothing to do with their knowledge of the latest SEC regulations or changes in the application of the Common Enemy Doctrine. A lawyer who is a substance abuser, for example, is very likely to get into trouble without regard to his or her knowledge of the law.

    And that may be the point to remember: MCLE is an effort to make a requirement of what a lot of lawyers, at least in MO, were already doing for themselves — keeping up to date in the area(s) of law vital to their practice. I suspect that practitioners in any profession have the same kinds of problems as lawyers. I suspect that physicians who get into trouble do so for reasons unrelated to their knowledge of the human body. And elected officials probably realize that bad habits or bad addictions are the real problems in almost all walks of life.

    The moral, in my view, is not to suggest that MCLE will protect the public from lawyers who get into trouble but will instead ensure only that lawyers are keeping up to date on changes in the law. And that is probably all any system can ever do.

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