A Response to Jordan Furlong

In a post at Law21, Jordan Furlong claims that no one wants to ask whether Mandatory Continuing Legal Education programs work, i.e, that they improve attorney competence. He suggests there is no evidence. There is. But MCLE organizations do need to pay more attention to the evidence.

Evidence for the effectiveness of MCLE: New York Study of CPE for Accountants

New York implemented mandatory CPE for accountants in the mid-90s and the state legislature required a study of effectiveness as part of that implementation. The study was run by Arden Grotelueschen, PhD, University of Illinois who was, at the time, the leading exert in the world on continuing adult professional education. They spent a half million dollars and concluded:

1. Mandatory programs increase partcipation in continuing education, and
2. Increased participation in continuing education correlates with increased knowledge.

So, what those of us who have been involved in MCLE for decades have always assumed - that attending CLE programs would increase lawyer knowledge levels - turns out to be validated. Who wants to argue some state or province should repeat this study just to show the same in law?

(As far as I can tell, the technical reports from this work aren't online anywhere, but I've got a scanned copy. Email me, dave.shearon at thrivinglawyers.org, and I'll send you the file.)

Evidence for the effectiveness of MCLE: Lawyer Response

Jordan also suggests asking lawyers about MCLE. Again, it's been done. Repeatedly. In multiple states. Over more than a decade. And the results are always the same: overwhelmingly positive responses indicating they approve of MCLE, they think it is making them a better lawyer, and they think it is making others a better lawyer. This data is online: Mandatory CLE Survey Analysis.

But, the competence criticism has some validity.

I agree with Jordan about the lack of purpose statements for MCLE programs. Basically, the writers of the Rules for the first programs back in the 80s appear to have assumed purpose was self-evident, and later drafters copied. However, after 24 years of leading an MCLE program, I can tell you that, in practice, the purpose evidenced by the behaviors of many state MCLE programs does not appear tightly focused on competence.  Many (most?) don't approve the type of training most needed to improve competence.

First, lack of knowledge of the substantive law is not the cause of most instances of poor lawyering. In a Tennessee survey, only about 16% of lawyers picked that as the primary cause. A whopping 84% went with either lack of law practice management skills or lack of commitment, energy and engagement with the law. See: "Causes of Poor Lawyering". As a result of its study in this area (and, yes, at my urging), Tennessee changed it's regulations on MCLE accreditation to specifically approve both personal coaching in defined formats (a change that has not seen much use) AND adopted Regulation 5H.2 that provides:

2. Dual credit will also be granted to programs or topics: 

a) designed to sustain or increase the capacity of attorneys to strive for and to achieve the highest, aspirational levels of professionalism, including programs aimed at increasing attorney well-being, optimism, resilience, relationship skills, and energy and engagement in their practices, 
b) designed to help lawyers re-connect with, strengthen, and apply their values, strengths of character, and sense of purpose toward achieving outstanding professionalism, 
c) designed to protect lawyers or help them recover from the deleterious effects on professionalism of stress, substance abuse, and poor staff, financial, or time management, or
d) designed to support the development of organizational cultures within firms, law departments, and legal agencies that recognize, support, and encourage outstanding professionalism.

Dual credit means credit that counts for either the Ethics/Professsionalism or the General requirement - it's the most valuable type of credit for compliance.

 

In addition, Tennessee has now undertaken an experiment in acccrediting mentoring (voluntary) for CLE, and the approach requires substantial training for mentors around the powerful negative impact of law school on the motivation and well-being of law students, the aspects of that impact that continue and are reinforced in practice, and key skills and practices that can re-build, maintain, and enhance levels of commitment, energy and engagement that lead not only to satisfaction in the practice, but also to the highest levels of professionalism and client service.

So, MCLE works to build knowledge, but many MCLE jurisdictions should not only accredit programs focused on helping lawyers engage better with their practices, peers anc clients, they should encourage the provision and participation in such programs through explicit approval language and no-limits accreditation.