Should we require CLE in specific topics?

Yesterday, Bob Ambrogi reported that North Carolina became the 2nd state to require continuing legal education in technology. Starting in 2019, NC lawyers must take at least 1 hour of tech CLE per year.

Related, the Vermont Supreme Court recently adopted the so-called “tech competence” amendment to Rule 1.1 of the Vermont Rules of Professional Conduct.  Effective December 10, new Comment [8], which is under the heading “Maintaining Competence,” will read:

  • “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which a lawyer is subject.”

I am not aware of any movement in Vermont to require CLE in technology.

There are areas in which CLE might soon be required.  Several states require CLE on harassment & bias.  Others require CLE on attorney well-being, with the mandate usually being that lawyers regularly take CLE in recognizing the signs and symptoms of substance abuse.  Each has been discussed in Vermont.

For what it’s worth, I’ve reviewed about 3,600 disciplinary complaints over the past 18 years.  Anecdotally:

  1. I’ve publicly stated that, in my experience, for every lawyer who I prosecuted as disciplinary counsel after his or her practice cratered, there were other lawyers who were in position to have recognized in that lawyer the signs & symptoms of mental health or substance abuse before it was too late.
  2. The Professional Responsibility Program has not received many complaints that relate specifically to technology.  Some, but not a lot.  That being said, I have a sense that there are lawyers struggling with the basics of e-filing.  I know of at least 2 instances where those struggles resulted in missed statutes of limitations. I also have a sense that there are lawyers who struggle with the preservation of ESI, as well as with ESI in general.
  3. I’ve not received a single complaint alleging harassment or bias. To be clear: I am not saying that it doesn’t exist. Quite simply, I am saying that nobody has filed a disciplinary complaint about it.

The notion of specific CLE requirements interests me.  For many reasons.

For one, I find it interesting that we don’t require CLE in the area of law that you practice. My guess is that this is a vestige of the days when most lawyers were general practitioners.  That is no longer the case.  Today, there is no requirement that lawyers who focus on family law, or on bankruptcy, or on real estate take CLE on family law, or on bankruptcy law, or on real estate law.

Fortunately, my experience has been that lawyers “self-target.”  The vast majority attend CLEs that relate to what they do.

Not only that, the Vermont Bar Association does a fantastic job of providing full-day events, with the opportunity for multiple CLE credits, in specific practice areas: Family Law Day, Real Estate Law Day, the Bankrutpcy Holiday CLE.  Similarly, the Attorney General, the Defender General, and Office of State’s Attorneys provide their staff attorneys with “practice area specific” training.

On the other hand, tomorrow, I’m speaking on ethics at the Bankruptcy Holiday CLE.  If I stick around for seminars on the intricacies of Chapter 11 vs. Chapter 13, those hours will count for just as much CLE credit as the hours I attend at next summer’s Annual Meeting of the National Organization of Bar Counsel.

Which will make me better at what I do?

Related, I think that CLE in the area in which a lawyer focuses should count as ethics.

Rule 1.1 requires a lawyer to provide competent representation to a client.  Per the rule, “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”

Using a family law practitioner as an example, it strikes me that a family practioner who attends the VBA’s Family Law Day  – and who sits thru presentations on the alimony guidelines, or on the latest opinions from the Supreme Court on property division – is likely more competent for having done so, which is exactly what the ethics rule requires.

Indeed, per Section 5(a) of the Rules for Mandatory Continuing Legal Education,

  • “Educational activity shall be eligible for accreditation to satisfy the requirements of these rules if it has significant intellectual and practical content directed at increasing the professional competence of attorneys and is of the nature listed below,” (empahasis added).

If a course must increase competence to be accredited, and knowing that competence inludes “the knowledge and skill” reasonably necessary for the representation, aren’t all courses ethics? At least for those who practice in the area the course targeted?

I’m not suggesting that we should discontinue courses, many of which I teach, that survey the Rules of Professional Conduct. For instance, what are an attorney’s duties when a client presents false evidence?  What are an attorney’s duties upon receiving information that attorney knows wasn’t meant for the attorney?  Courses on the rules remain critical, no matter an attorney’s practice area.

But, if it’s unethical to be incompetent, isn’t it ethical to be competent?

Finally, it interests me that we do not require CLE in trust account management.  Ever.  In an attorney’s career.  A quick look through the PRB’s digest of decisions shows how often trust account violations result in sanctions.

I understand that there might be people who disagree with this post.  That’s good.  Maybe it’ll spur discussion.

Have a great Thursday!

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