Originally published on May 17, 2010 in our free BigLaw newsletter.
Two weeks ago, I received my New York State attorney registration form in the mail. It asks me to certify by June 16th that I've taken the mandatory number of Continuing Legal Education credits in the past two years and solicits my "biennial registration fee" of $350. Of course, those of you toiling away in large law firms can earn all your credits at your firm and even have your firm pick up your registration fee — but that doesn't mean your CLE experience couldn't stand some improvement.
MCLE: GOING THROUGH THE MOTIONS
Requiring lawyers to continue learning is a great idea in theory. But in practice, the mandatory CLE (MCLE) system fails miserably at this mission. MCLE amounts to little more than an expensive hassle (time-wise if not monetarily) in which the educational value gets lost in the mix. New York State may ask me to register my license to practice, but I would rather register my protest … against the current MCLE system.
If you're like most other Biglaw attorneys, you probably choose the CLE classes you attend based on the type and number of CLE credits offered, not the relevance to your practice area. For example, if you're short ethics credits as your certification date approaches, you'll likely attend a class on mediation ethics issues even if you're a tax attorney. The class may be interesting, but it arguably won't help your tax practice.
Even worse, let's say you skipped all your in-house CLE lectures and now have to cram by attending a three-day seminar in some hotel ballroom. Look to your left and look to your right — you'll no doubt see fellow lawyers focusing more on their BlackBerrys than the lectures.
MCLE creates a perverse incentive system.
And it's also tantamount to a regressive tax as those lawyers least able to afford CLE have to pay the most. In New York, CLE providers must offer fee waivers or fee reductions to attorneys who earn less than $50,000 per year, but that's small comfort for those who don't qualify.
THREE SUGGESTED CHANGES
Encouraging attorneys to hone their legal skills and knowledge is a worthy goal. Thus, rather than eliminate MCLE we should instead try to change it from within the system and without so that it actually achieves its purported goal.
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.
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