Why Maryland Needs Mandatory CLE
Below follows an article co-authored by Hon. Lynne A. Battaglia of the Maryland Court of Appeals and yours truly. It appears in the current Maryland Litigator.
Butcher: “The first thing we do let’s kill all the lawyers” (King Henry VI, Part II) (Act IV, Scene 2).
Why were those like Dick the Butcher, a follower of the anarchist Jack Cage, “head of an army of rebel and demagogue pandering to the ignorant,” when seeking to overthrow the government, planning to strike first at the lawyers? Lawyers throughout history and today are the centrifugal force of a free society under the rule of law.
The legal profession has always been, for the most part, self-governing, particularly in this Country and in the State of Maryland. Self-governing or self-regulation has succeeded because the profession has imposed on itself the very highest standards. As leaders, lawyers impose these highest standards upon themselves, not for the purpose of maintaining self-regulation, which, no doubt, is coveted, but because we have professional responsibilities to ourselves, our clients, the courts and the community. Surely Shakespeare, through Jack the Butcher, knew that for rebellion to succeed, striking first at lawyers might bring down the rule of law and the free society so dependent on that rule.
A free society depends on its lawyers for protection. Lawyers are the palladium of liberty.
It is equally unhealthy for the profession, as it is for society, if the public loses confidence in the high quality of members of the legal profession. Lack of confidence erodes our ethos and our role as leaders. Thus the highest standards must be maintained and self-imposed. This has been so and should continue to be so.
To be professionals requires excellence in expertise and knowledge in order to foster trustworthiness and to enhance the role of the lawyer as a fiduciary - one who seeks to serve another, rather than him or herself. The foundation of excellent lawyering and serving the community rests upon continued education and intellectual growth for self-improvement, to better represent clients, and serve those who depend upon us. More so than ever before is the law growing at a dramatic pace.
A better-informed public poses ever more serious challenges to the historic workings of the law and the courts; even the sense that lawyering does not require any special training or knowledge appears to pervade the increase in self-representation. We, as lawyers, however, know that Rule changes and court opinions revise how complaints are to be crafted and new causes of action must be presented. New campaign finance laws, among other national, state and local legislation, creates more tension in the courts and between the various branches of government. Some would contend that defendants in criminal cases have expanded worries as public policy weighs heavier against them. Bankruptcy procedures in a fragile economy appear more complex than ever. There is always so much to learn and, for most, little time to devote to continuing education.
While the Maryland Bar has distinguished itself over many decades and continues to do so today, there is one blot on the record: the recalcitrance to support a mandatory policy of continuing legal education for lawyers. While forty-seven states and territories in the United States require lawyers to take CLE courses to continue in the practice of law, Maryland does not. In the past two years, Nebraska and New Jersey have adopted MCLE, demonstrating the trend in favor of mandatory education; in this regard, it is not the sheer numbers that control, but the sense that lawyers must recapture the vision that the law must be studied in order to be effectively practiced.
The Maryland Bar is not only out of touch with most of the lawyers in the United States, it is also out of touch with public sentiment. As an editorial, January 10, 2010, in The Daily Record in support of MCLE pointed out “… [a] Respected profession owes it to the citizens who place their faith in its professionals to assure that those professionals [are] fully credentialed in the first place and [continue] to educate themselves in their area of practice.” Almost every other profession and occupation, including health care providers, accountants, and hair stylists, require continuing education. The recalcitrance of the Maryland bar to support MCLE is all the more perplexing considering that all judges in Maryland are mandated by order of Chief Judge Bell to take at least twelve hours of continuing education annually; ASTAR judges must complete at least 120 hours, in addition to an annual commitment of time.
Consider further that Rule 1.1 of the Maryland Rules of Professional Conduct requires lawyers to provide competent representation. Comment 6 to rule 1.1 provides, “[t]o maintain the requisite knowledge and skill a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements which the lawyer is subject.”
The idea of MCLE is not new for the lawyers of Maryland. The MSBA recommended MCLE in 1995, but as recently as the Fall of 2009 took a different position after a survey of its members reflected that 70% of those responding voiced opposition to MCLE. The idea takes on fresh significance today, because the Professionalism Commission of the Court of Appeals of Maryland presented to the Court proposed rules for MCLE. Under the proposed rules active attorneys of the Maryland Bar would be required to complete only ten hours of MCLE annually. Exemptions are permitted. Although five of the ten required hours must be earned by attending accredited CLE courses, up to five of the ten required hours may be earned through the following means:
1. Participating in “in-house” seminars, courses, lectures, or other MCLE activity presented by law firms, governmental agencies, or similar entities;
2. Completing self- study courses involving the use of audio or video recordings or other technological means; or
3. Other activities including: attendance at bar association, professional association, or inn of court meetings; non-paid scholarly wiring and publication, teaching law school or MCLE; and similar activities. The complete proposed rules are posted on www.courts.state.md.us
The basic reasons suggested for opposing MCLE and the responses can be summarized as follows:
• Lawyers have already completed law school and passed the Bar exam.
Lawyers, however, must continue to keep abreast of new developments as the Rules of Professional Conduct require.
• Lawyers attend CLE without being told.
Some do but many do not, as shown by a report of the Long-Range Planning Committee of the MSBA in which in survey results, lawyers reported taking more CLE because they were mandated by other States.
• Requiring MCLE is just another regulation in an over-regulated environment.
The amount of regulation in Maryland for lawyers may, in fact, be less than for cosmetologists and certainly less than for doctors.
• The requirement is economically burdensome and consumes too much time.
Not so. With modern technology, attorneys can easily access teleconferences, web casts and pod casts at less cost than more traditional programs. The proposed rules include a hardship exemption for attorneys who demonstrate that completing MCLE would be unduly burdensome. Providing CLE through the various Bar associations would make those collegial groups more relevant with their members and mitigate the price, especially now, after the demise of MICPEL.
For example, in the State of Kansas, an attorney may complete his or entire MCLE obligation by attending a one and a half day program conducted by the University of Missouri-Kansas City School of Law. The cost of this program is $245. According to an administrator of the program, the course has caught on with Kansas lawyers, to the point that the University now provides more MCLE credits to Kansas attorneys than any other organization save the Kansas Bar Association, according to one of the University’s CLE administrators.
On the other hand, in the State of Illinois, an attorney can fulfill his or her MCLE obligations by attending free CLE courses. The Minimum Continuing Legal Education Board of Illinois maintains on its website a list of over 50 providers of free and low cost ($20 per hour or less) CLE programs. No cost CLE providers include the Clerk of the Circuit Court of Cook County, the Intellectual Property Colloquium, ADR Systems of America, LLC, the Illinois Lawyers’ Assistance Program, and the Attorney Registration & Disciplinary Commission (“ARDC”). The ARDC held over 130 speeches and CLE events in 2007, and now offers CLE web casts on its website. Members of the Chicago Bar Association (“CBA”) can subscribe to a “CLE Advantage” program, which, for $125 per year, allows members to attend an unlimited number of classes and seminars. According to the CBA’s chair for CLE programs, the CBA had a substantial increase in membership, and in CLE attendance, after the CLE Advantage program was adopted. [See: Maria Kantzavelos, As first deadline nears, CLE providers step up, Chicago Lawyer, April 2008.]
• There is no evidence that MCLE improves the quality of attorney performance.
The short answer is that there is no evidence that MCLE does not improve lawyer competence. Common sense dictates that professionals who participate in CLE will learn and direct their learning to develop their character and expertise as lawyers.
• You cannot force someone to learn.
While that may be true, there are many lawyers who want to learn, but need the incentive that MCLE offers to continue learning and to understand that the Court of Appeals truly values lawyer competence.
Maryland lawyers should support the proposed rule, which imposes minimum burdens. The proposed MCLE rule requires fewer hours than every other jurisdiction. For example, Minnesota and Colorado, along with other states, require attorneys to complete forty-five hours of MCLE every three years. Missouri and Texas, among other jurisdictions, require 15 hours of MCLE per year.
If the Bar does not render support for MCLE, it is the responsibility of the Maryland Court of Appeals to do so. As the governing body of the Bar, allowing the Maryland Bar to avoid education in the guise of avoiding regulation is to support a regrettable policy, and does not reflect well on the Court. Surely if MCLE is not implemented, the Court’s commitment to excellence will not be recognized.
