Is there concrete value in MCLE requirements?

By Diane Karpman

The California State Bar is holding public hearings about our 20-year-old Minimum Continuing Legal Education (MCLE) program, and changes may occur soon. Note there is no empirical evidence that MCLE makes a difference in the services we provide to our clients, and there are five states and one federal district without any legal education requirements at all.

Does anyone think that the lawyers in Maryland, Massachusetts, Connecticut, South Dakota, Michigan and Washington, D.C. are less ethical, less cognizant of substance abuse, less aware of bias and less competent than California lawyers? (Well, maybe some D.C. lawyers; after all they can have non-lawyer ownership of law firms.) Michigan had an MCLE requirement for new lawyers, but rescinded it in 1994.

The State Bar acknowledges that there is no statistical evidence demonstrating a direct, positive correlation between CLE and attorney competence (People v. Ngo (1996) 14 Cal. 4th 30). Further, the faint support for the program is evidenced by the fact that state government lawyers are not required to take CLE. As explained by Justice Kathryn Mickle Werdegar, “If MCLE compliance were truly a sine qua non of competency, surely the Legislature would not have exposed the state to incompetent representation by its own in-house counsel." Or maybe that particular exemption was based upon financial considerations?

Many lawyers wrote responses to the State Bar’s request for comment. Almost uniformly, they are opposed to the substance abuse and bias requirements. The bias requirement can be supported by our Rule of Professional Conduct 2-400 (Prohibited Discriminate Conduct in a Law Practice).

It seems highly unlikely that MCLE is going to be decreased or terminated. Actually, with the bar making comparisons to other professions, an increase may be suggested. Can anyone suggest that educating one of the historic "learned professions" is a bad idea? There are, however, a couple of issues with the current CLE program that need to be addressed.

This is an unusual time in the practice of law. According to the Pew Research Center, roughly 10,000 baby boomers are retiring daily, and will continue to do so for the next 15 years. Obviously, many of them are lawyers. They need to know how to close down their practices, transition into new activity and maybe focus on pro bono or a new career. The Dallas Bar Association offers a class on what to do when you turn 65, because there are big decisions to be made.

Additionally, there are cataclysmic changes occurring in the practice of law. Clients don’t want to fund the traditional education of associates at law firms any longer. Yet our young people are struggling with crushing debt loads. (The average is reported to be $100,000.) Many are being forced to "hang out shingles," because employment at law firms doesn’t exist. Those two factors clearly demonstrate the need for permitting law practice management to substitute (on an optional basis) for some of the ethics units.

Make no mistake. I am biased in favor those units. This becomes an issue of public protection. As my colleague John Rubiner pointed out, we are subject to discipline for failing to have adequate systems of law practice management in our offices. Examples include trust account violations and failing to supervise staff.

Recently we witnessed lawyers who falsely reported compliance with their CLE suffering severe penalties during State Bar audits. According to the bar, more lawyers are going to be audited in the future. That penalty often involves acknowledgment that their conduct was an act of moral turpitude, 30 days actual suspension, and a host of other penalties.

Yet we no longer audit providers that offer CLE. In the late 1990s, there was an official State Bar MCLE Committee. The committee audited providers to make certain that they were complying with our unique California requirements. (An hour is an hour and not 50 minutes.) There are currently thousands of providers, and it is shameful that nobody is auditing them. At the recent hearing, a State Bar representative indicated that they are starting the audits again. Great idea, since otherwise there is very little motivation to comply with the mandated requirements, and lawyers are being preyed upon.

Some have suggested that the pro bono community may not be pleased if MCLE is increased because there are only so many hours in a day. Because of the lack of empirical evidence, some have suggested that MCLE exists because it makes the bar look good to consumers. Let’s not just attempt to "look good." Let’s try to make CLE of genuine value and use to the profession.

Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com