MCLE IN NEW JERSEY — WHAT’S BROKE?
I was recently asked by the Chair of the Dispute Resolution Section of the New Jersey Bar Association section to comment on New Jersey’s Mandatory Continuing Legal Education program. Here goes….
From what I read, it seems a fait accompli that the Supreme Court of New Jersey will require more rigorous MCLE. In the absence of clear metrics defining the specific problems we are trying to address, what our goals in addressing them are, and how we might measure success and failure (and the cost of same), I suggest the Court refrain from significant changes. Let’s fix what’s broke, if anything, once we know what it is, and how we would know success if we were to achieve it. In my view, it would not reflect a failure on the part of the Committee if its recommendation, upon reflection, were to be to continue to study with a focused effort on the “what’s broke” question.
As a licensed attorney in this State for 22 years I have appreciated NJ’s decision to go a path different than many neighboring states as a breath of fresh air. It implied a grown-up trust in the Bar to do what’s required to deliver ethical high-quality service synonymous with New Jersey’s legal tradition. In the past, when consideration of more stringent CLE requirements has periodically come up, my experience, albeit anecdotal, was nearly universal that the lawyers I most respected for their energy, judgment, and ethical character felt that such requirements were, at best, unnecessary, and, at worst, ill-advised or absurd. I cannot think of an instance in which a practicing lawyer I respect greatly based on his or her work privately expressed enthusiasm for greater CLE requirements, and those people in general give freely of their time to legal reform and charitable causes.
I admit to being instinctively uncomfortable with schemes with obvious feel -good effect, but which, upon reflection, offer little in the way of measurements of results against which to perform a cost-benefit analysis and I tend to see this as one of those. I have never heard, for example, how the quality of lawyering anywhere has been shown to have demonstrably increased because of mandatory CLE. Do the malpractice carriers have statistically-sound data correlating claims with the rigor of their CLE programs? Most senior New Jersey practitioners I have talked to over the years look nostalgically to a bygone era, when, if their sense is to believed, lawyers in New Jersey instinctively behaved with greater integrity and respect for each other. Do the facts show that civility and honor have been decreasing notwithstanding ever-increasing opportunities for a more formal CLE curriculum, here and in the adjacent states of Pennsylvania and New York? I have even heard the suggestion that the inflow of lawyers from other states, some with more rigorous CLE requirements than New Jersey, is a cause of reduced civility — the idea being that one is not as inclined to engage in guerilla tactics with one’s neighbors as with strangers. On the other hand, while I do not know if New Jersey’s current rules relating to CLE are creating difficulties for our lawyers in receiving reciprocal state licensing elsewhere, and, if that were to be the case, I would think that one argument in favor of reexamination of the status quo. (But the only reciprocity issue of which I am aware relates to NJ’s strict standards for reciprocal bar admission.)
If MCLE is a fait accompli, I suggest we look hard at the costs and benefits in deciding the manner of implementation. It seems obvious that those best able to attend costly CLEs are lawyers from firms with regular work on behalf of business clients. Yet any substantial firm would tell you that it already has in place a system for training and continuing to educate lawyers far superior to what can be expected to be reaped from the now-standard seminar format. In-house programs are tailored to educate practitioners in areas in which they actually practice, and I believe there’s truth to the claim that such programs work. The major law firms also offer similar services as a value-added proposition for their in-house-lawyer clients. Can cost be spared by allowing certain lawyers to opt out of mandatory CLE?
Arguably, any substantive benefit of more rigorous requirements would be greatest at the small practitioner level where there may be fewer resources than in big shops. First, I would ask is there any good data to show how smaller shops have been helped elsewhere? Second, I would ask whether it makes sense to pull smaller-firm practitioners, virtually all of whom are already fully-subscribed in serving the legal needs of average citizens, including the public interest law community, away from their daily work and family obligations to go to CLE. I see no point in taking a hard-working, competent, ethical lawyer away from serving clients for even one moment or charging clients more money for services if there’s at best some nebulous benefit.
Also, we live in an information age, and going to seminars, telephonically, web-based or more old-fashioned, seems out-dated. I see ad-after-ad, in print and electronic form, advertising how lawyers can get “CLE credit” from attendance at this or that. What is the process to vet the value being conferred on anyone other than the seminar-provider collecting fees? At the same time, the websites of the most competent firms are filled with substantive information readily searchable by anyone who has been through law school ranging from the most basic to arcane material about the minutiae of complex matters. For example, a Google search of the term “Rules of Professional Conduct” reveals “about 1,050,000″ hits of relevant information. Narrowing the search to “New Jersey Rules of Professional Conduct” produces “about 62,400″ hits, many with links to prestigious law firms, scholarly journals and law school sites. Aren’t we already under a duty and don’t we already have a strong financial incentive to avail ourselves of this treasure-trove of content? Why pay to repackage it?
Also troubling to me is that as this issue has come up this time around, the attitude of lawyers I respect seems to be resignation that there’s no point in fighting the inevitable, even though it could be a bad idea . I note that when large numbers of the governed believe the law to be absurd, the result will be creative, sometimes corrupt, avoidance, which ironically runs directly contrary to the original good intentions underlying that law. Has anyone seen the ads for golf/tennis/beach resorts for lawyers to attend to fulfill their MCLE requirements? I am a strong advocate of lawyers getting together for a good time, but, if that’s the benefit, why not just mandate that each lawyer spend at least 12 hours a year socializing with other New Jersey lawyers?
Finally, while I do not question the motives of the Bar, the Court or its hard-working Committees, I suggest the Committee charged with advising the Supreme Court attempt to isolate and bring about an open discussion of the role the profit-motive of those who “sell CLE” may be playing beneath the surface here. If the profit dividend that flows from the NJ CLE industry were to be assigned to an appropriate good cause, perhaps the Client Security Fund or improvements in the quality of the courts, would the level of enthusiasm change? I believe focusing on that question may cause some heat, but may also shed some light on what we’re talking about here.
There are many questions, and I do not purport to know them. I admit I am not an expert on the data. A concern is that it is not evident that anyone else is or that there has been a rigorous effort to gather and analyze it. I wonder if these observations and concerns will ring true to others?
Tags: Bar Association, Ethics, MCLE