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Impossible and Impractical Ideas for Fixing Continuing Legal Education

The TechnoLawyer Blog today features a post by Marin Feldman entitled "The Case Against Today's MCLE System." Feldman, reacting to the biannual request from the New York Office of Court Administration for fees and confirmation that she has been a good little attorney and attended the requisite hours of CLE, laments that attending classes, for most lawyers, is considered a necessary evil.

Feldman doesn't like that lawyers choose which classes to attend based on which of the three types of credits -- Ethics and Professionalism, Law Practice Management, or Areas of Professional Practice -- they're short of, or that lawyers don't pay a whole lot of attention when attending programs. Both observations are undoubtedly valid. I, as a litigator, attended my fair share of "Drafting the Perfect Indenture" and "ERISA: To Know Her is to Love Her" sessions. And, yes, I often spent those hours marking up draft briefs.

Where I part ways with Feldman is when she gets to her three suggested changes to the MCLE requirements:

1. Practice Area Emphasis

States could require attorneys to obtain CLE credits in their area of practice on a rolling basis. Restricting how lawyers can earn their credits would be more of a hassle than the current MCLE system, but states could reduce the number of credits required.

2. Level the Learning Field

States could also increase their registration fees, but set aside most of the funds in private accounts for each lawyer to use on MCLE courses. Large firms that offer in-house CLE would not be eligible to receive any funds. Thus, the haves and have nots in the legal profession would effectively pay about the same for MCLE.

3. Post Mortems

Not every change has to come from the outside. Taking a page from hospitals, large firms that offer their own in-house CLE could use these programs to conduct post mortems on the firm's recently concluded casework. For example, lecturers could share best practice and mistakes, which vendor they chose for an eDiscovery job, an interesting court opinion that helped win an oral argument, etc. These post mortems would have the added benefit of giving junior associates public speaking experience.

I'll take them in order, give you my brief spiel on each, and then open it up to you readers for thoughts.

1.     Who defines an attorney's "areas of practice?" Last I checked, New York did not have a process for certifying attorneys in particular specialized areas of law. States that do have such procedures -- Texas, for example -- essentially base such certification largely on the number of CLE hours an attorney has completed in that area. Those who choose to specialize to the extent of getting certified have already committed to taking the relevant classes.

2.     To the extent I understand this suggestion, it sounds like Feldman is suggesting that each lawyer should be allowed to "reclaim" some part of his or her registration fees to be put toward CLE class tuition. Because BigLaw firms conducting in-house CLE programs don't charge their attorneys to attend, this would benefit solo practitioners and others who have to resort to commercial providers like PLI. This sounds like a complete administrative nightmare. Would attorneys seek reimbursement from their firms and then firms seek reimbursement from the OCA? When, as Feldman notes often happens, a Big Law attorney has to attend an outside program because the deadline is fast approaching, would the firm be prohibited from seeking reimbursement because the attorney had the option to satisfy his requirements in-house but didn't do so? I sympathize with attorneys who have to pay for CLE out of their own pockets -- especially because I now am one -- but this doesn't sound like a feasible remedy.

3.     I'm not sure if Feldman has ever attended an in-house CLE at a Big Law firm, but in my experience, there often is a large "postmortem" element to the discussion. You can bet that a "Developments in Trademark Litigation" session will be led by a lawyer who has recently engaged in some trademark litigation, and he or she will take the opportunity to tell war stories. Where the topic of e-discovery is on tap, there is inevitably talk of the relative merits of certain vendors based on past experience. In short, I'm not sure this is a "change" at all.

The CLE system certainly is not perfect.  Do you have other complaints? Other suggestions?

Posted by Eric Lipman on May 24, 2010 at 12:28 PM | Permalink | Comments (0)


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