Saturday, February 27, 2010

Maryland Court of Appeals to Consider Mandatory CLE

Stepping outside our usual precincts of judicial opinions, this posting reports on two related developments: the proposal by the Professionalism Commission set up by the Court of Appeals to establish rules for mandatory continuing legal education and the demise of The Maryland Institute for Continuing Professional Education of Lawyers, Inc. (MICPEL).

The press release by the Court of Appeals on the proposed rule change states that:
The Professionalism Commission, which was set up by the Court of Appeals, is asking the Court to set a minimum annual requirement of 10 hours of continuing legal education (CLE) for attorneys practicing in the state. The Commission, headed by Court of Appeals Judge Lynne A. Battaglia, also proposes that a Commission on Mandatory Continuing Legal Education be set up to oversee the requirement.
Both of these developments have been the subject of a great deal of discussion on the various MSBA listserves. However, the discussions have been taking place in isolation from one another. That is, there's a business law section discussion, a small and solo section discussion, a litigation section discussion, and so on.

We have posted the news about both the proposed rule change and the demise of MICPEL with the hope that the discussions on the various listserves will be conducted through the comment section of this posting. In other words, the comment section will become a venue for an integrated discussion among lawyers in every practice area.

Update: Paul Carlin, executive director of the MSBA, has released a memorandum on rebuilding the CLE function. In the memorandum, he reports that the MSBA Board of Governors "wants the MSBA to facilitate the provision of quality, cost effective CLE through its Sections." The memorandum also states that the MSBA is attempting to place many MICPEL publications online with free access.

14 comments:

  1. Merely having a requirement fo Mandatory CLE in terms of a specified number of hours of CLE does not accomplish the target objective (I am assuming that the objective is higher competence among lawyers in the cases they handle).

    I always have an excess of CLE hours, so this is not a problem for me, particularly as I receive credit for the many hours of teaching I do. But unless the CLE does in fact relate to the area where the lawyer practices, the target is missed for those lawyers and they are usually the ones who truly need CLE iun their areas of practice. For example, what accomplishment of the objective is obtained by a criminal defense lawyer logging hours of CLE in international trade law; what is accomplished by a family law lawyer logging hours of patent law CLE?

    If you are thinking, "Oh, come on. That doesn't happen." I say, yes it does. Perhaps not quite as bizarre as those two examples but pretty close. Lawyers say, I need 6 hours of CLE rigtht away, so I need a program to attend. They then will pick a program -- any program essentially -- that will accrue for them the six hours they need.

    Unless the system has some way of requiring and monitoring the applicability of the CLE to the practice area of the lawyer, Mandatory CLE is just more politically correct eye wash. The lawyers who sincerely aspire to improve and grow in their fields opf practice will do so even without a mandatory requirement, while the other lawywers will avoid the real benefit intended unless it just by chance falls in their laps.

    There are ways this can be accomplished by coding CLE courses and practice areas, but this is not the time or place to set out a suggestion in detail.

    --John Lowe, Bethesda, MD

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  2. OTOH, moving to a mandatory CLE might help encourage a greater diversity and number of CLE options, making it more likely that we can each find relevant topics with which to satisfy our new-found obligations. In a similar vein, I'm glad to hear MSBA is stepping up to fill the void left by MICPEL's lamented demise. I can't count the number of time when, as an MSBA section council member, I've seen MSBA and its sections have to dance around the edges of the agreement making MICPEL the exclusive substantive CLE provider (at least among MSBA and the law schools). Now, MSBA and its sections will hopefully be freed up to help fill up the gap.

    Note that this "gap-filling" need not be a replication of MICPEL's model, but open the doors to significant innovation. Thanks to Pat Yevic's (MSBA's Law Office Management Assistance director) and the Solo section council's efforts, much of what the Solo section (and other sections) has put on of late is available as downloadable video or audio files. I foresee a time when satisfying CLE requirements will be as easy as spending some "quality time" with your iPod or smartphone (or iPad, if your eyes are getting weak, like mine), or your office computer (or home theater, if you want the full surround experience!), so you don't necessarily have to put up with the sandbaggers dragging themselves to the "real life" sessions.

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  3. Pardon the cross-post from the Solo Listserv, but this seems relevant here as well:

    Let me begin by noting that as a solo practitioner with less than a year since I took the oath, I’m in need of continuing education as much or more as any attorney out there.

    That being said, I do not support mandatory CLE. I had been taking MICPEL classes and have purchased a fair amount of MICPEL materials. MICPEL was a big part of my business plan and I’m very sorry to see them go. However, part of what makes CLE classes valuable to me is the fact that the attorneys there are there because they want to be there. They are generally active and engaged and I learn nearly as much from their input and the informal conversations over lunch and during breaks as I do from the formal presentations.

    I do not look forward to attending classes with “captive” attorneys and those who are there merely to get a check in a box indicating they’ve done their time.

    To be generous, I’m sure the judges in Maryland have suffered through ample exposure to attorneys who do not measure up to the standards of the profession and I think it’s likely that fact is a large part of what is driving the rush to mandatory CLE. However, I’m also sure that states with mandatory CLE also have an ample number of attorneys who not measure up to the standards of the profession. Furthermore, a bad attorney is a bad attorney. Today’s bad attorney who does not take advantage of voluntary CLE is tomorrow’s bad attorney sitting in a mandatory CLE class typing on his Blackberry or reading those case notes he should have read last month.

    In short, he can be led to the water that has always been available to him, but the drinking will always be voluntary.

    Jon

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  4. Michael E. GrossMarch 1, 2010 at 9:15 AM

    Regarding mandatory CLE, I don't understand why the court would be considering it. The Maryland Bar has been operating for some without mandatory CLE, and I can't say that I have noticed any problems.

    Have I missed something lately? Was there some sort of study showing
    that Maryland lawyers are becoming less adept at dealing with the
    issues of their practice and therefore in need of mandatory education?

    If not, why does the Court want to waste our money and time on it?

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  5. attorneystephen.rourke@gmail.comMarch 1, 2010 at 9:20 AM

    I was invited by Stuart Levine to share some thoughts I'd posted on the MSBA Solo and Small Firm Listserv, regarding a debate on the listserv about the demise of MICPEL and the desirability, or lack thereof, of mandatory CLE. FYI, the majority of the posts seem to oppose it, with varying rationales and levels of intensity.

    I'm inclined to think that more market-based incentives might be the way to encourage attorneys to participate in CLE, assuming the availability of affordable providers. For example, what if the MSBA or the Court of Appeals made available to the public information on the number of hours each attorney spent in CLE? For that matter, to use an idea suggested by my partner (and wife), Cynthia Rosenberg, what about reductions in
    MSBA dues or in CSTF assessments based upon having taken a certain about of CLE hours in a given year?

    I think that, in our profession, sometimes we're so used to using sticks that we forget the value of carrots.

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  6. Howard A. NewmanMarch 1, 2010 at 9:41 AM

    I am a member of the Florida Bar, which has mandatory CLE. Without getting into the merits, I believe that CLE should be mandatory for every lawyer in at least one jurisdiction in which he/she is licensed. I believe the function of CLE is to educate the lawyer, sometimes including in areas outside of one's expertise. Regardless of the actual law learned, every discrete quanta of law learned adds to the body of knowledge that a lawyer possesses. I certainly buy into the liberal arts model of being well-rounded!

    In any event, I believe that should MD become a mandatory CLE jurisdiction, there should be a waiver for those lawyers who are already (actively) licensed in another mandatory CLE jurisdiction. Stated otherwise, there should be no requirement for CLE if it is already being met in at least one jurisdiction.

    I agree with my esteemed colleagues who lament having to deal with (and sometimes wade through) different CLE requirements in different jurisdictions (and that an hour may not necessarily be an hour!). I already have similar issues concerning the reporting of my pro bono requirement and to some extent, dealing with other (different fiscal) year end issues. Such unnecessarily adds transactional costs to being a lawyer in different jurisdictions.

    In the final analysis, I believe mandatory CLE is a good thing. And if in the end MD adopts mandatory CLE without a waiver as discussed (and should FL not adopt a similar rule), I will happily fulfill my requirement (which I usually exceed anyway).

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  7. Similarly to John Lowe's thoughts , I think that the idea of Mandatory CLE's are a waste of time, $$'s and efforts to real practicioners. The notion that requirments will make us "more educated" is lost in he reality that those who do not engage in continuing education now will only do so under the mandatory umbrella as a means to '"check-off" the requirement(s), not to use the opportunity to learn. Its like the old addage that just because you lead a horse to to water will not make them drink it - they have to have thirst for it. Same with mandtory CLEs. Those that thrist or desire continuing ed do so now anyway to improve thier practice of law. Those that do not will waste their time and $$'s to fulfill the CLEs but not take anything away (the goal behind the idea of mandatory CLEs). My two cents . . .

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  8. Through the years I have taken many MICPEL and other similar classes
    on topics of interest and subjects that have a direct bearing on my
    areas of practice. I do not need to be forced to do.

    There is a cost factor to all of this. The classes are not exactly cheap. In addition to paying for 10 hours of classes, we're missing 10 hours of billable time. To a solo, that adds up. When you take into consideration the various barfees, Client Trust Fund payments, malpractice insurance (not to mention routine office admin expenses) and the pro bono hours that we are "encouraged" to provide annually, this is a very expensive profession.

    Furthermore, a forced ethics course? What is the purpose for that? Is the thinking that requiring us to take an annual ethics course will make us a more ethical profession, that it will some how instill a more ethical code of conduct in individuals? I think that's sort of like asking Michael Vick to take classes on compassion. Either you have it or you don't. Requiring one to sit in on 2 hours of an ethics class each year is not going to make that person a better lawyer or more ethical. They'll pay their money, yawn through the class, get their rubber stamp and go back to practicing the way they did before.

    My two cents....

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  9. I have no problem with this if they make CLE free. If they want to charge then I do not agree. A good lawyer will study the law regardless and a CLE will not have a lazy lawyer become competent. A lot of new lawyers cannot afford to spend hundreds of dollars on these courses.

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  10. I had prepared comments on this issue, but discovered that the comments exceeded the number of letters allowed by the weblog. Accordingly, I created a separate website for the comments. I invite you to read those comments at:

    http://futurelawpractice.jottit.com/

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  11. One of the reasons that MICPEL failed was because in many respects it was no longer necessary. With the advent of the list serve, I have access to changes in my field at the speed of light. There are any number of publications in specific areas of law that provide insight in the designated areas that I work in.

    The only reason that CLE is being considered as mandatory is in order to provide the necessary funding to force it work.

    I am aware of the ethics rules and consult them regularly. I have the relevant opinion letters on file and obtained from the internet. There are regular discussions on the list serve as to whether a certain action is of concern or not. Why do I need 2 hours of mandatory Ethics CLE required?

    The other problem with mandatory attendance at live CLE is that if someone sneezes you can miss the whole reason for being there.

    It would be better to make CDs available on topics with materials at no or reasonable cost (we are not talking hundreds of dollars here) and take them out on lend lease like a library. They can be regularly updated and can include discussions or lectures by qualified individuals. There is no need for paper handouts, everything could be PDF.

    Lack of questions and answers is not a real concern as we all have the list serve, brown bag lunches, etc.

    The courts all have their own educational programs already to get their agendas out. I know because they are training my new competition. So it is just our concerns to become better at what we do. I see no reason to make another educational institution rich and monolithic.

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  12. Although I am not supportive of traditional mandatory CLE, I have read Mr. Levine's proposals above my immediately prior post and I would be supportive of that direction and his proposals.

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  13. I am one of the newly minted, highly indebted, under-mentored attorneys Mr. Levine spoke of in his piece. Mandatory CLE is expensive and generally not targeted to help new attorneys acclimate to a profession where mentoring is no longer the norm. I would support Mr. Levine's proposals as they would be of great help to me. I graduated law school with a concentration in securities regulation, but now that market is gone and cheap resources like a wiki would greatly assist me in figuring out my next move. Any dialog regarding professional mentoring is met with disdain from longtime practitioners and a wiki could go a long way in helping me reinvent myself. Also, contributing to the wiki could give me some exposure in the legal community I would not otherwise have. I would also tie access to an MBSA account number to encourage people to join MSBA and fund the cost of the project.

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  14. Full disclosure: I am employed by Virginia CLE (although any opinions stated here are my own and not necessarily my employer's).

    Whether CLE is mandatory or non-mandatory, those lawyers who aspire to continued improvement (and is there anyone among us who can't improve?) will always seek out CLE. The rest will do as little as they can get away with.

    That said, there are ways to enhance the CLE experience to address the concerns stated by those opposing mandatory CLE. The likelihood of a lawyer registering for an inapplicable program simply in order to beat an annual MCLE deadline can be lessened by offering a wide array of courses. At VACLE, for example, we have an online library of over 400 on-demand courses that lawyers can view via the internet 24 hours a day. No Virginia lawyer (or out-of-state lawyer who takes our courses) can complain about not being able to find programs in his/her practice area.

    The convenience factor can be addressed by offering a number of formats in addition to a wide array of courses. With our on-demand online courses, live webcasts, CD-ROM seminars, and telephone programs, lawyers can fulfill their annual MCLE requirements (and a lot more) without ever having to leave their office.

    Cost is a concern in every industry, and CLE is no exception. There is no "free" CLE. Quality CLE takes money to produce, and if an organization does not charge for it up front, it will pay for it indirectly through member dues. However, CLE does not have to be cost-prohibitive. Most CLE providers offer "bundles" of one form or another, whereby an attorney can purchase multiple courses - even a full year's worth in a mandatory state - packaged together at one significantly discounted price.

    Bottom line, there are ways to address the valid concerns raised in this discussion. Visit us at www.vacle.org and you'll see.

    P.S. If you have an opportunity to attend a trial advocacy course taught by John Lowe from Bethesda (first poster above), be sure to do so. You'll find it time and money well spent.

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