Why Great CLE Costs Good Money
A few weeks ago, Scott Greenfield bemoaned the demise of quality of continuing legal education (CLE) (if there ever was such a thing). As Scott observes, most CLE today consists either of panels of experienced lawyers who show up prepared with nothing but a bunch of war stories or fluff programs on marketing or ipad use taught by consultants. While both categories of programs (war stories or practice management) may be valuable or interesting for lawyers, neither serves the purpose for which CLE was intended, which is to ensure lawyers’ competency in substantive law practice and serving clients.
So why has CLE quality declined even as all states except a scant few (DC and Maryland among them) have adopted mandatory CLE requirements? The answer in a single word: money. Great CLE costs good money because of the extensive time and effort that goes in to preparation of a solid, worthwhile and useful program.
Though I can’t speak to other CLE providers, here’s an example of the kind of effort that I put into my recent Art, Science & Ethics of the 21st Century Retainer Agreement , a web-based program priced at $49.95 (after positive feedback from the first two runs, I’m embarking on the CLE certification process). First, I identified the 21st century issues, from alternative billing to electronic billing and outsourcing that lawyers may want to cover in a retainer agreement but for which there are few examples.
Next, I spent around 15 hours reviewing the current law and ethics of these issues as well as retainer agreements generally. Though I’m generally familiar with requirements in the jurisdictions where I practice, I also needed to understand the “lay of the land” in other states. My research included comprehensive review of law journal articles (through Hein Online and SSRN), Google Scholar and Bloomberg/BNA Ethics service. Because states and the ABA have the annoying habit of copyrighting ethics decisions, the text isn’t included as part of the BNA service (just the URL), so I’d have to exit the system to read the underlying opinion.
Once I gathered all the materials, I spent another 15 hours writing the ebook, which contains 80 pages of text and a 100 page appendix comprised of forms, tip sheets and examples. As part of this task, I had to draft sample language for fourteen different retainer agreement clauses, and modify/edit five other template agreements because I couldn’t find any templates that included the verbiage that I needed. To make the ebook as attractive as possible, I had it professionally designed (by Legal Typist.) To make the forms useable, I asked my assistant prepare them as PDF forms and word documents. Finally, I prepared a slide deck for the webinar. Without the promise of compensation through program sales, investing this level of effort and expense (on ebook and form design) would have been utterly foolhardy (this is true even if I’d given the CLE for a prominent program or bar association without payment thereby getting the benefit of “exposure” instead of self-sponsoring)
The same is true for most other lawyers, many of whom are even busier or better reputed than I. A lawyer who’s going to invest time and effort to devise a useful CLE needs to be compensated. But most bar associations, which either don’t have the money or view CLE as a money-maker, can’t afford the fees that real CLE speakers command. In fact, that’s why so many bars resort to vendor-sponsored programs — most vendors and lawyer-consultants can afford to speak free since they’ll earn back the value of their time by selling their services. (Caveat: this isn’t the case with all bars; there are a number of solo/small firm state bars that are able to attract quality speakers and still offer modestly-priced CLE) And while quality, non-bar affiliated CLE providers can apply for credit and self-sponsor, many solo and small firm lawyers can’t afford to shell out a few hundred dollars for CLE since they’ve grown so accustomed to the all-you-can-eat or free CLE content by providers like Lawline or even the ABA, that they’re reluctant to pay for CLE at all.
So what’s the solution? First and most importantly, states should either have reciprocity for CLE-credit or collaborate on a national accreditation program so that individual lawyers with a quality program (like mine, but surely, there are many others) could easily obtain CLE without added expense. Currently, large operations like Lawline or various vendors have the resources and staff expertise to get CLE certification for their programs (as well as the ability to spread the costs out across various programs) – but it’s much harder for individual lawyers to finance and undertake the certification process. Once certified, individual lawyers can market CLE programs themselves without being beholden to offer them free to bars or mega-providers which in turn provides a profit-motive to offer quality content.
Second, bars should value quality over quantity when it comes to CLE compliance.
If there’s a well-reputed training program (for example, Max Gardner’s bootcamp that costs several hundreds of dollars, it should satisfy a lawyer’s entire CLE requirement for the compliance period.
Finally, for those lawyers who truly can’t afford the cost of CLE, the bar should allow alternative compliance mechanisms, such as quality blogging on substantive areas of law, handling pro bono matters or partaking in a mentoring or internship program in a law firm (both the firm and lawyer would get CLE credit). If there were more inexpensive opportunities to satisfy CLE requirements, lawyers wouldn’t be forced to take vendor-sponsored product sales pitches masquerading as education or to sit through a rambling CLE discussion just to save a buck.
Truth be told, I’m not a fan of CLE at all. Good lawyers do what it takes to stay current and learn new skills to serve clients without need of a requirement, while lawyers who simply don’t care will spend a CLE session returning email or playing games on their smart phones. But if bars are going to have a CLE requirement, it should be meaningful or they shouldn’t have it at all.
This article makes mostly good points, but I may question some. First let me simply agree with its major thrust: that quality education (CLE or otherwise) takes a lot of work to develop, and it’s not clear that most CLE programs satisfy any need other than ticking off a number of hours.
However, some of the remedies suggested above seem not to address the problem. The biggest unaddressed issue is quality control itself; Bar staff by and large don’t have any significant mechanism for this, mostly likely because *that* would be very very expensive.
One approach would be to require CLE students (..and the use of that term may offend some …) to take a simple test showing they grasped the basic concepts of the course (…whether they agreed with them or not.) I have yet to see even a multiple-choice quiz at the end of ANY CLE, despite the common wisdom that knowing there will be a test at the end of a lecture increases information retention (…which, presumably, is the goal of CLE.)
One approach I disfavor is awarding credits for Good Works, e.g. pro bono. If providing pro bono services fulfills an educational need, so do so paid services of a similar nature. Converting CLE into a tool for encouraging pro bono services encourages cynicism and doesn’t seem likely to significantly close the justice gap nor improve lawyer education….at least, any supporting data in those areas is scantly.
Otherwise: good article – keep it up!
Carolyn, your preparation and focus on providing good content are exceptions to the general rule. The vast majority of CLE is barely better than dreck. Scott Greenfield bemoans the demise of quality? Hah! Quality CLE is oxymoronic.
It’s too bad that you waited until the final paragraph to merely allude to the real solution when you admit to not being “a fan of CLE.” The solution is to eliminate mandatory CLE altogether.
But in the absence of eliminating the requirement, the reality remains that there is an unsaid reciprocal duplicity at play. It’s the reason we put up with dreck. Lawyers take CLE as a means to an end, which is to satisfy the mandatory requirement imposed by their respective jurisdiction(s).
Providers, on the other hand, knowing they essentially have ‘captive’ customers forced to take CLE don’t have much incentive to provide quality. This is especially true of bar associations, who act as gate-keepers and even impose fees-for-credit on lawyers who deign to take CLE from non-bar providers.
It’s a cynical game played by both sides, which only promotes a race to the bottom. You admit as much by your trenchant statement: “Good lawyers do what it takes to stay current and learn new skills to
serve clients without need of a requirement, while lawyers who simply
don’t care will spend a CLE session returning email or playing games on
their smart phones.”
Recognizing the unspoken hypocrisy and institutional pietism of this system and in opposition to those cash-cow oriented bar associations and the overpriced third party providers, in my own small way, I scour the Web for free online CLE and promote these outlets to my readers at “The Irreverent Lawyer” blog.
Finally, there are two ironies at play. First was the now fatuousness belief that the onset of Web-based content was supposed to have leveraged economies of scale; improved content quality; while at the same time reduced the delivery cost to the end user. This never happened. The greed temptation proved too strong, especially with MCLE readily providing a ‘captive’ market.
Second has been the willful blindness of institutional providers to barely acknowledge the devastating impact of both the worst recession since the Great Depression and the unrelenting destructiveness of the law school bubble. Unfortunately, the response to this has been negligible.
The truth of the matter is that lawyers, especially young newly-minted ones, can’t afford CLE. They are either underemployed or unemployed and alternatively, struggle as solos — not by choice — but by exigency.
Bar associations both local and national only pay lip service to the problem. Law schools are even worse, although a few have belatedly started providing free CLE to alumni as a sop to the unconscionable tuition debt burdens they have bequeathed to their unemployed/underemployed hapless graduates.