The MCLE question no one wants to ask

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.             

Learning to run

There’s an old expression among professional sports coaches: “You can’t teach speed.” It’s usually meant to indicate that there are things you can train athletes to do well (skills) and things that are simply God-given (raw talent), and it encourages the traditional view that talent is more valuable.

I’ve come to believe differently. In most markets, athletic and otherwise, there’s no shortage of talent: the physical and mental attributes of today’s new recruits surpass what most members of previous generations could boast. What’s missing, in many cases, are the skills, the knowledge of how to deploy those talents to maximum effect as a performer. Almost every good athlete coming out of high school and college can run fast; relatively few, however, learn to run well.

These thoughts came to me while reading (and commenting upon) an excellent post by UK law professor John Flood, in which he laments the complete disconnect between the legal education system and the rapidly evolving profession into which that system’s graduates will be deposited. If you asked your average law school professor to identify names like Axiom, Acculaw, Lawyers On Demand or any leading LPO, as John suggests, they wouldn’t know what you were talking about.

Law schools are so far behind the legal market’s evolutionary curve (and apparently so uninterested in catching up) that they seem extremely unlikely to lead conversations towards a better legal education and training system. But if so, where do we start fresh? I’d like to suggest that we begin by re-examining some fundamental assumptions about “talent” versus “skills” in the legal profession.

Virtually everyone in law school and the legal profession today has talent: some combination of raw intelligence, analytical and logical adeptness, and/or communication ability. That’s primarily thanks to the undergraduate education systems that produced these lawyers, the Law School Admissions Test that judges them, and the law school admission personnel who value these criteria head and shoulders above any others.

So the talent is there. Virtually everyone who’s in or preparing to enter the legal profession has speed. But not everyone in the legal profession can run well. And the newer you are, the more this is true. It’s almost universally the case for law students and new lawyers, in fact, who have received almost no training to help turn their talents into skills with which they can serve clients and make a living. (And I don’t just mean “practice” training; the tools with which you become a great lawyer include a really solid grounding in jurisprudence, legal history, and ethical philosophy, and not many law degrees can say they deliver that.)

Law schools haven’t been much help in this regard; but in fairness, it really wouldn’t have made much difference even had they spent the last 20 years teaching students “how to be lawyers.” That’s because the market for which those fantasy schools would have been preparing students is quickly disappearing. Nobody (not least me) can say with certainty what law practice in 2026 will look like, but it seems a pretty safe bet that it’s not going to look remotely like it did in 1996. Just as well, then, that we have mostly raw talent that doesn’t need to unlearn old habits before acquiring new ones.

But we still need someone to lead the way in the new skills-acquisition process for the legal profession — and that leads me to think there’s a huge market opportunity, right now, for a legal skills training company geared towards early 21st-century law practice. Never mind preparing students for Skadden or Linklaters; prepare them for Axiom, Lawyers On Demand, Clearspire, Quality Solicitors, Eversheds Legal, and similar operations that look like they’ll be offering an increasing percentage of legal jobs over the next couple of decades.

But — and this is important — we need to skill lawyers up, not down. We don’t want to be developing data entry clerks or automated-contract proofreaders here, and tomorrow’s best legal employers won’t be hiring those people. We need to train new lawyers in leadership, problem solving, project management, cultural fluency, emotional intelligence, technology, entrepreneurship, and other traits that have a decent shot at being the skills future lawyers will need. Give them the tools with which they can harness their talent and take it into any high-value or socially meaningful career, whether it involves the sale of legal services or not.

Law schools, as mentioned, might as well not be in this discussion. I don’t have a great deal of confidence in the practicing bar, either, especially given CLE administrators’ continued fondness for offering legal updates and calling it “professional development.” These are yesterday’s approaches; we need to find tomorrow’s. Solo Practice University remains a powerful model for this sort of innovation; we need more organizations interested in training lawyers to be gainfully and usefully engaged as lawyers in the decades to come. We need far greater use of true, supervised, mentor-based apprenticeship, because “doing” has a multiplier effect on “training.”

What we need, essentially, is a new breed of coaches who can deliver future-oriented professional development. There is no lack of opportunity awaiting them. There are thousands upon thousands of lawyers out there who can run fast but aren’t getting anywhere. They need someone to teach them how to run well.

CLE’s steep learning curve

@LTNY online networking panel. This is not what I expected. Must either leave/kill self soon as possible.

Haven’t we all been there at one time or another? Stuck in a presentation that we devoutly wished we’d never signed up (or been obliged) to attend? Up till now, all we could do was suffer in silence and wait for a coffee break or the end of the session to voice our regret to the nearest listener. Then Twitter came along.

The quote above is a Twitter entry by Gabe Acevedo, an attendee at LegalTech New York who was sitting in — and livecasting his thoughts about — an online networking session on Tuesday. Suffice to say he wasn’t delighted with the presentation, but what matters for our purposes is that he transmitted his displeasure to more than 150 followers, many of whom re-broadcast these and other negative messages to many thousands more, most of whom weren’t at the conference but all of whom received a pretty negative assessment of the session and its sponsor. Never mind all those paper evaluation forms that conference organizers are always asking you to fill out. Thanks to Twitter, liveblogging, and wireless access, every CLE session in the world is now subject to instant, real-time, uncensored feedback — not just to the event organizers, but to everybody.

As I’ve said before, it’s not just the private practice of law that’s in upheaval, it’s all the industries and offerings connected to it, including  law school, legal publishing, and legal research. It’s now time to add CLE (and its more evolved descendant, Continuing Professional Development) to the list.  Here are three ways in which CLE is likely to be transformed. Continue Reading

Ontario bar admission overhaul, part 2

Continuing from yesterday’s post, here’s the conclusion of a two-part running commentary on the Interim Report To Convocation from the Law Society of Upper Canada’s Licensing and Accreditation Task Force. Again, this won’t be a blow-by-blow account of the report, but I do recommend you read the whole thing. This article (which is also appearing today at SLAW) will simply touch on some of what I regard as the more relevant and noteworthy paragraphs on articling in an altogether remarkable document. Here we go.

83. The Law Society’s articling program has been an established part of the licensing process for decades. It reflects the transition from the earlier legal education system that was predominantly an apprenticeship system to the university model that replaced it. It has provided students-at-law with an opportunity to experience and learn about the practice of law in a relatively risk free context of supervised law firm placement. In the Law Society’s current licensing process the articling term is 10 months. Candidates may begin articling at any time after the end of the skills and professional responsibility program.

84. Unlike the medical model of education, however, articling is not interwoven into the framework of legal education. There is little direct link between the education candidates receive during law school and the “clinical” component that is articles. The profession has long viewed the articling program as a bridge between the two worlds of education and practice.

Just setting the stage here.

90. [I]ncreased law school enrolments, possible establishment of new law schools, increasing numbers of internationally trained candidates [are] problematic for the articling program…. [I]n a system that appears able to place approximately 1,300 articling students in a stable economy, it is likely that the number of candidates seeking articles in 2009 could be approximately 1,730. This does not reflect additional candidates that would come from any new law schools.

To put that in its proper perspective: in 2001, the number of new applicants for articling positions was just 1,247. The system is being overwhelmed. Continue Reading

Ontario bar admission overhaul, part 1

Yesterday, I posted a brief note about the Law Society of Upper Canada’s Licensing and Accreditation Task Force Interim Report To Convocation. Today, as promised, is the start of a two-part running commentary on what struck me as the most relevant or noteworthy aspects of the report. The first half, which I’ll address below, deals with the report’s preamble and its thoughts regarding the Skills and Professional Responsibility Program. Tomorrow, in an article that will first appear at SLAW, I’ll look at the task force’s recommendations concerning the articling system.

Herewith, an annotated stroll through a very important report.

15. A national standard for the approval of common law degrees for the purpose of entrance into law society bar admission or licensing processes has never been articulated in Canada. The only articulated standard for 50 years is a Law Society of Upper Canada document, set out at Appendix 1, that was prepared in 1957 and amended in 1969 (“the amended 1957 requirements”) and which other law societies appear to have tacitly accepted.

I think this nicely sums up the imminent train wreck of a lawyer licensing system that our profession lives with today. The standard was written in 1957, amended in 1969, and tinkered with at regular intervals over the next four decades while Canadian society, the legal services marketplace, and eventually, even the profession itself, evolved into enormously different beasts. In 1957, Louis St. Laurent, Maurice Duplessis, Tommy Douglas and Joey Smallwood all held elected office. Try picturing the legal profession as it existed in that era — that’s the profession that drew up today’s bar admission rules. Continue Reading

Articling abolition? A groundbreaking LSUC report

It arrived quietly and without fanfare. I’ve seen no reports of it in the mainstream media or the legal press. In fact, the young-lawyer-focused law blogs Precedent and Law Is Cool are the only places I’ve seen talk about it so far. But the Law Society of Upper Canada’s Licensing and Accreditation Task Force Interim Report To Convocation, delivered last week in Toronto, is set to completely overhaul the process of admission to the practice of law in Ontario and, eventually, the rest of Canada. If you’re a law student, a lawyer who intends to hire new lawyers someday, or interested at all in the present and future direction of lawyer training in Canada, this report is an absolute must-read.

The main interim report is 44 pages long, followed by an additional 152 pages spread out over 10 appendices. I doubt there’s ever been a more comprehensive report on the bar admission process (nor will any other province likely try to duplicate the task force’s efforts or findings), and I can only imagine what the final report will look like. For what it’s worth, I think the report’s findings are accurate, timely and sorely needed.

I don’t have time here to break down the report in detail — I’ll be writing a more comprehensive commentary that will appear at SLAW in a few days’ time and will be cross-posted here. But this is what you need to know:

1. The Task Force recommends the abolition of the current Skills and Professional Responsibility Program from the bar admission process in Ontario. Of all the reasons the task force gave for this recommendation, perhaps none is more suprising than its assertion that right now, law schools are doing a better job of teaching students skills and professional responsibility than the law society is.

2. The Task Force offers three alternatives to the current articling process by which lawyers ostensibly receive sufficient practical training to enter the practice of law. These are:

(a) make it extremely clear to all current and prospective law students that the law society does not guarantee articling placements, and accordingly cannot guarantee that a law graduate can become a practising lawyer (laissez-faire).

(b) set up or certify a parallel Practical Legal Training Course that provides law graduates who could not obtain articles the chance to earn an equivalent certification in practical legal skills training (Australian model).

(c) Abolish articling outright (the U.S. model).

The Task Force makes no recommendation concerning these three options — it offers pros and cons of each — but it makes quite clear that the status quo is not sustainable, not least because the Ontario bar admission process is facing a tsunami of rising applications over the next few years, culminating in an expected 2009 application class no less than 38.7% larger than in 2001.

The report is groundbreaking, if for no other reason than that it squarely lays out the numerous shortcomings of Ontario’s present bar admission process and demands that the profession act, now, to change. Go read it.

MCLE’s new look

The cover story for National‘s March 2008 edition will explore mandatory continuing professional development, or MCPD, which will be up and running in Canada less than a year from now. If you’re from England, Wales, Australia, or any of the 43 US states with MCLE regimes, it might surprise you to learn that no Canadian jurisdiction currently mandates ongoing professional development among its members. If you’re from Canada, it might surprise you to learn that a Canadian jurisdiction is going to do just that.

A little less than three months ago (November 7/07), the Law Society of British Columbia’s Lawyer Education Committee released what I expect will one day be seen as a landmark report on MCPD. Earlier this month, the law society accepted the committee’s recommendation for a limited CPD regime in B.C. starting in January 2009. Other provinces are talking about MCPD to a greater or lesser extent, including Manitoba, Ontario, Quebec and Nova Scotia, but none currently intends to go as far as B.C. is going. I recommend the final report, and its interim antecedent, for a thorough and impassioned exploration of the state of post-call legal education in Canada and worldwide.

For me, however, the landmark nature of the report doesn’t arise so much from the new mandatory status of CPD. One way or another, either through law society requirement or through outside intervention by the marketplace or the state, the days when lawyers could choose whether or not to upgrade their skills and knowledge are coming to an end. What’s really promising about the B.C. decision is the broad range of approved CPD activities. Continue Reading