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.