DaveShearon

From Moral Partners to a Moral Firm

A Google News Alert I have set for MCLE matters brought this Law.com article to my attention.

From Moral Partners to a Moral Firm

Gregory S. Gallopoulos
Special to Law.com
May 2, 2007

Here’s the link:

http://www.law.com/jsp/article.jsp?id=1178010280159

The article deals with what law firms can learn from the struggles of accounting firms to maintain ethical awareness and action as the controlling metaphor and structure of the firm moves from a group of individual partners to an integrated enterprise.  The author notes the long-observed effect where indivduals with personally high ethical standards can learn to behave in ways that transgress those standards within a group context.  Thus, the “ethical standard” of a firm may be significantly less than the personal ethical standards of the members of the enterprise.

Here’s the key paragraph for those involved in MCLE:

“Second, the firm needs to establish a formal educational program to ensure that all attorneys fully understand the ethical standards to which they are expected to adhere by both the firm and the profession. Participation in the program should be mandatory. The best programs are customized to suit the particular needs of attorneys at various levels and in various practice areas. In setting up a program, a firm can draw on both internal and external resources. For example, a firm could ask its in-house counsel to conduct seminars on some issues while arranging for legal ethics experts from academia or government to present on other issues. As a side benefit, a firm's program can be operated so as to satisfy mandatory CLE requirements.”

Note that under Tennessee's current approach, such “in-house” CLE would not be accredited.  However, given the underlying purpose of CLE – to promote more competent and more ethical attorney performance – our prohibition would seem to work against our purpose.  Of course, there are other considerations in removing in-house CLE from the minimum requirements of MCLE.  One such concern is that attendance reporting may be less honest.  Does the MCLE Director in the firm tell a senior partner that she cannot claim the full credit when she was out for over an hour on a client matter?  What if the partner is at the deadline and will be fined or her name will appear as in default?  But is this really that much different from outside CLE?  After all, we do not require sponsors to serve as hall monitors on attorneys.  There is also a concern about removing attorneys in firms from the marketplace for CLE and the effect of such a change on the availability, cost, and quality of CLE available to other attorneys.  While these may be appropriate concerns about in-house CLE in general, they seem less compelling when juxtaposed against a particular need for ethics education that may well be only possible if it is done within the firm.  It seems to me fairly likely that, if this choice were put before a representative sample of clients, they would choose “C” from the choices below:

A.      Continue to deny all in-house CLE.

B.      Allow all in-house CLE.

C.      Allow in-house CLE clearly tailored to the unique needs and demands of firms if it meets more stringent standards of development, presentation, and evaluation.

I am not arguing one way or another on this.  But I do think that in this matter, as in some other areas, it is appropriate and responsible for decision makers to revisit from time-to-time long-past decisions to see if they still seem to be the most appropriate compromises in light of the current structure, role, and public standing of the profession.

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