Constant Low Effort, Part 2: The Practical Problems with CLE Requirements

Welcome back to Lawyers & Liquor on this the first posting day of the year 2019. I, the Boozy Barrister, hope you all enjoyed your evening of watching the clock count down to midnight and your holiday spent in the office behind a locked door frantically catching up on all of the end of the month shit that you’re expected to do as a practitioner of law.

Last time we discussed CLE hours, and that kicked me off in a whole new thing we’ll continue today. Meanwhile, I finally verified that the CLE hours I gained over the past weekend by sitting in a crowded room and listening to people drone the fuck on and on about topics that were, at best, barely within the wheelhouse of the type of law I practiced.

And isn’t that just about the truth of the matter? I mean, the whole purpose behind the CLE program is to make sure the public received services from attorneys that have remained up to date on the practice of law and the requirements related thereto. You certainly don’t want some dipshit counselor who may or may not believe Reagan is still president citing case law that’s been overturned for two fucking decades, right? So, I mean, making attorneys scramble like chickens with their heads cut off every year to get those hours together, that’s a good thing, right? It keeps us honest.

First, never use the words “honest” and “attorney” together again, people will think there’s something wrong with you. Second, the mandatory CLE requirements are, in and of themselves, problematic even when looked at in the light of their alleged purpose of ensuring attorneys remain up to date on the law. And we’re gonna talk about some of those problems today.

YOU DON’T HAVE TO PAY ATTENTION TO SHIT.

As recognized by proponents of the mandatory CLE system there’s absolutely no way to measure whether or not attorneys really learn shit at these CLE seminars. See Herschel H. Friday, Continuing Legal Education: Historical Background, Recent Development, and the Future , 50 St. John’s L. Rev. 502, 507 (1976); see also Lisa A. Grigg, The Mandatory Continuing Legal Education (MCLE) Debate: Is it Improving Lawyer Competence or Just Busy Work?, 12 BYU J. Pub. L. 417, 426 (1998). I mean, they freely admit that there are absolutely no metrics to measure whether or not the practice of requiring attorneys to undertake mandatory CLE courses every year has actually improved the practice of law despite, now, having have over forty years to study the impact of the mandatory CLE – considering that in 1976 two states had a mandatory CLE regimen (but more on that later). See Friday @ 507 (noting that as of the date of publication two states had adopted mandatory CLE requirements); see also Grigg at 426 (conceding that in the 22 years from 1976 to 1998, no actual studies could be found which showed the effectiveness of the mandatory CLE at improving attorney representation or knowledge. And that’s a big fucking deal, because the way the current mandatory CLE regimen is set up, there’s absolutely no way to measure whether or not the attorneys that are obtaining the hours are paying attention. There’s no test of the knowledge prior to getting the credit, no participation requirements, nothing. We show the fuck up, sign in, and zone out for an hour or two while the lecturer rambles on and then we leave.

And while you may say “well, maybe that’s what you do, Boozy,” you can just go and fuck right off because folks, it ain’t just me. I have been in chat rooms where lawyers taking CLEs are focused on the chat, not the presenter. I have had attorneys tell me that CLEs are a “great time to get some doc review done on the laptop.” I swear to god this weekend I watched the guy in front of me play Fallout 1 on his laptop through the entire goddamn CLE course seminar – that’s 12 hours – and I became very emotionally investigated in the progress of his character as a result. Fuck, folks after the last article in this series my Twitter feed was filled with guys who were roundly mocking the concept of paying attention during a CLE, with one attorney referring to mandatory CLE courses as “Dedicated phone game time.”

Oh yeah. It’s improving the fuck out of the quality of legal education. Even Grigg, in her article, admitted that the purpose of the CLE is that merely by attending an attorney may soak in some knowledge purely by osmosis…but Grigg was writing in a time before Candy Crush and laptop computers that can download games over a hotel conference room WiFi. The times, and the attention spans related thereto, have changed. Attorneys don’t have to fucking listen to the presenter anymore and likely won’t if they have a choice when slogging through their hours requirement.

Why won’t they, other than the shiny technological distractions?

Because…

CLE COURSES DON’T HAVE TO BE RELEVANT -AND OFTEN AREN’T.

Look, its not like attorneys are the only profession with these sort of requirements. We all know that many other learned trades out there – doctors, nurses, accountants, etc. – have some form of annual education requirement. It’s not even that I’m against the concept of such education in theory, especially when in fields where new discoveries are made often and changes happen on a regular basis. But last weekend I sat through a course called “Basics of Bankruptcy” that opened with, I shit you not, a discussion of what exactly a Chapter 7 trustee’s meeting of creditors is in manner a 4 year old would grasp. I’ve been practicing bankruptcy law for years now as part of my practice, and learning about the simplicities of the practice of such law at that level served absolutely no purpose to me…nor, I expect, to any of the lawyers shoved into that Holiday Inn conference room, all of whom appeared to have decades of experience under their belts and included luminaries like – no shit – a recently retired judge. So why would any of us, who certainly have a firm grasp on the intricacies of how to fill out a fucking Chapter 7 Petition from personal experience, have attended such a course?

Because we needed the fucking hours.

When you get right down to it, that’s the determinative factor in what CLE courses any attorney takes. As much as we talk about how we’d like to take a course that may have an impact on our practice, those courses are pretty few and far between. Like I go to the annual family law update in January of each year, and that’s sometimes helpful but for the most part its a goddamn lunch break because, here’s a newsflash, the law is more or less static from year-to-year (except when it isn’t). It doesn’t change much, and when it does the changes are really big and really noticeable or they’re something you become aware of well before the CLE comes out about it. For the most part, though, the determination of what CLE an attorney will take comes down to factors that have absolutely nothing to do with the relevance to the lawyer’s practice area, such as:

1. Will it get me my ethics hours?
2. Is it held at a time I can attend?
3. How much does it cost?
4. Will they serve me lunch as part of it?

Yeah, that last one is a real factor that other attorneys have told me is determinative in whether or not they’ll attend the course. Tax lawyer? Doesn’t matter. “Mechanophilia and Custody Cases” offers a buffet, so sign the fuck up and then play some Simpsons Tapped Out for a couple hours.

“I’LL LEARN IT IF I HAVE TIME” IS A REAL THING.

You know how last time I said it’d been a busy year? For me that means I’ve been in the office or the courtroom every day, Monday through Friday, for 12 hours a day at the least. And while, when things are slow, that means I can login and at least take half of my CLE hours online, during a busy year it means that I’m actually fucking working on things. When you spend your days meeting with clients, attending multiple hearings, and drafting documents, you end up with very little breathing space. I’m not the only one in this situation, either. A big firm associate I know recently told me that because they were swamped this year with a few cases, their employer set up a weekend long CLE seminar in the office for them. Likewise, many small practitioners have told me they simply can’t find the time to get out of the office and go fulfill their mandatory CLE requirements because, in the practice of law, time is money – a fact that even proponents of the mandatory CLE system recognize is problematic for the small lawyer.See Robert H. Staton, The History of Mandatory Continuing Legal Education in Indiana, 40 Val. U. L. Rev 345 (2006) (recognizing small practitioners lose the ability to bill while attending CLE seminars).

This is a goddamn issue, because the vast majority of CLE courses take place on weekdays during business hours. So while there may be a relevant-to-your-practice CLE being held on Tuesday at 1 p.m., if you have court that day you’ll be taking the 8:30 p.m. course on boat loan avoidance for Chinese nationals engaged in shrimping and you’ll fucking like it, boy-o. Because you get what you can get, at least to the point that it minimizes the lost income you’ll suffer by ducking out of your office in the middle of the day to go take a CLE course. Which is how I ended up taking Bankruptcy For Fucking Morons this weekend.

In other words, for a lot of attorneys the issue is we have to take what’s damn well available and not what’s relevant to our practice. Which, you know, is good because…

IS IT RELEVANT? PREPARE TO GO BROKE.

With some exceptions, CLEs are a free lunch sort of deal even if they’re giving you lunch. While certain groups, mainly law groups like the Inns of Court or your local voluntary bar association, offer free CLEs to attorneys that pay (sometimes outrageous) annual membership dues, and some larger firms and government groups pay attorneys’ CLE costs, for the majority of the small and solo practitioners out there the CLE cost is something that’s paid out of pocket by the lawyer. Which, you know, can have a definite impact on the quality of the legal education the attorney receives. That’s right, Cooley grad, you can end up paying too goddamn much for too goddamn little even after you enter the practice of law. But why is this an issue? I mean, you have to pay for just about everything, why should that be a detriment?

Because I’m going to pay less for a CLE that the provider knows is barely relevant to fucking anything than I will for a CLE that the provider knows is more or less essential to the area of practice. For instance, the 12 hour CLE seminar I took recently cost me $350 for 12 hours. That’s a hell of a deal, considering a single CLE course can range from $50 per credit hour up to, for the more relevant ones, $150 per credit hour. But, as we discussed, the seminar I attended was filled with CLEs that were basically worthless, which is why they cost about $29 per hour. To compare, I took a CLE last year that examined how to challenge toxicology reports in DUI cases, a very relevant are to my practice, that cost over three times per hour what I spent for a 12 hour course.

CLE providers are definitely aware of the fact that the more plainly relevant a course is, the more they can charge for it because – get this – attorneys who have funding through their firm and shit will actually fucking take it. The rest of us end up going for the slim pickings of the CLE world because we simply can’t afford to pay $1,2000 to get all of our hours for the year.

It should worry you that your attorney is taking educational courses intended to make them a better lawyer and more competent based on cost alone – but I guarantee you it’s happening every day.

SO WHAT NOW?

We’ve covered a lot over the last couple posts, and it seems like I’m just bitching about CLE courses. But I’m not. I mean, I am, but I’m not just bitching about CLE courses.

I’m getting ready to argue that mandatory CLE courses, as they currently exist, should be either massively reformed in how they are administered or…preferably…completely fucking eradicated.

But that’s for Monday. Hope to see you then.

-BB