Michigan Lawyers reject Mandatory Continuing Education

Cynthia McLoughlin, Ph.D.

As in psychology, MCE for Michigan lawyers is an idea that's been kicked around for a long time―on at least six different occasions since 1975. For lawyers it has, at least for the time being, been kicked out. The story is an interesting one.

“Disaster” 

Although the idea had been discussed previously, the first and only time MCE was made a requirement for Michigan lawyers was in 1989. That year, the State Bar of Michigan asked the Supreme Court (which, in addition to its more well-known duties, is also the governmental body that regulates the legal profession, loosely parallel to our Licensing Board) to institute mandatory continuing education for all lawyers. After considerable debate, the Supreme Court compromised and imposed the requirements only on new lawyers. The requirement was 36 hours of instruction within three years of licensure, and the courses were to include topics concerning ethics, professional responsibility, and the transition from law school to private practice. By all accounts, this experiment was “a disaster.” It was universally detested by the young lawyers (who found the requirements irrelevant to their professional educational needs), and no one else liked it, either. Proponents of MCE for lawyers (usually called MCLE, or Mandatory Continuing Legal Education) complained that the existing program was under-funded and wanted the requirement applied to all lawyers, not just new ones. The State Bar itself asked the Supreme Court to rescind the rule in 1994 (which it did).

Second Attempt 

Four years later, in 1998, a new president of the Michigan Bar Association, the late J. Thomas Lenga, made MCLE a top priority for his administration. Once again the State Bar asked the Supreme Court to impose MCLE on all the state's lawyers. The arguments the Bar Association made in urging the adoption of MCLE included:

The Supreme Court published the proposal for comment in October 1998, and the Court received more than 70 letters. There was considerable debate of the issue in professional publications and six public hearings were held. The main spokespersons were Mr. Lenga (for) and lawyer Stuart Israel (against). [See article by Mr. Israel] The main proponents of the proposed new requirements were the State Bar and many large county and city bar associations. Most of the opposition came from practitioners.

Arguments Against 

Critics of MCLE argued that it is a “cosmetic” gesture, aimed at producing the impression that the profession is doing something to protect the public when in fact the requirement offers no such protection. Part of the review process included a look at similar programs in other states. One observer commented, “I attended a number of national meetings on this topic [MCLE] and what I found was that the focus of the participants was not on, ‘What is it we’re trying to do?’ but on, ‘How are we going to make more money and perpetuate what we’re doing?’...This is really, really big business….”

Further, critics argued that, if incompetence among lawyers is a serious problem, MCLE is too modest a reform. “[I]t is addressed to the lowest common denominator. It is geared to the unconscientious. Isn't this group a small minority of the bar? If not, there is something wrong with the profession that will take measures far more substantial than mandatory CLE to cure.” Some critics commented that they found those in the business of delivering MCLE were “extremely zealous” about their products, and that “there was a lot of inappropriate pressure to fall into step lest we be seen as a state full of backward professionals living ‘out in the boondocks.’” Lastly, some lawyers protested what they saw as either faulty logic or unfair rhetoric that came from some proponents of MCLE. It was commonly argued, they said, that “If you’re not for this [MCLE], you’re against continuing education, when that isn’t the point at all.”

On their part, advocates of MCLE argued that a license to practice subjects all practitioners to state regulation, of which MCLE is only one form. The majority of other states, they argued, had MCLE requirements, and MCE is widely required by other professions, including medicine and accountancy. MCLE is the only way, they argued, to ensure that every member of the profession is exposed to some form of ongoing education. This, they maintain, is the least the profession can do to send the public message that lawyers want to protect the public from incompetent or unscrupulous practitioners. “Honestly, now,” argued Lenga, “would you consult with a doctor for yourself or a family member if that doctor had taken no course to update herself or himself on the latest diagnostic techniques?” As to objections about the costs of MCLE programs, proponents argued that these costs should be accepted as part of professional life. “Attending MCLE,” said Lenga, “is simply a cost of doing business, just like office space, computers, office staff, and...law libraries....” As in psychology, advocates admitted that they could cite no studies measuring the effects of mandatory education, but proponents maintained that the benefits were obvious: “I submit,” said Lenga, “that no studies are needed. We know that education is good and makes people better at what they do.”

MCLE Proposal Withdrawn 

In July 2001, after three years of inaction by the Supreme Court, the Michigan Bar Association withdrew its proposal for mandatory continuing education, saying that it was in the midst of an intensive re-evaluation of its “overall mission and the services we provide to our members and the public….”

The current president of the Association, John Berry, says he believes “there are strong arguments on both sides of the issue.” Berry said there are currently no plans to re-introduce MCLE in this state due to a lack of “political support” both on the Supreme Court and among practitioners.

Alternatives to MCLE 

Today the Michigan Bar Association is working on several alternative methods of addressing the problem of incompetent professionals.

One method targets attorneys who are brought before the Bar’s disciplinary body for relatively minor infractions. Bar Associations, Berry explains, are increasingly making use of “diversion plans” that make “professional enhancement ” (mandatory education) one aspect of their disciplinary process. Berry says he believes that using mandatory education on an individual basis to address problems of professional incompetence is “far more effective than discipline alone in reducing recidivism.” (He was not aware of any research that would prove or disprove this claim.)

A second method of addressing incompetence based upon lack of information aims to address the problem at the law school level. Berry said law students (not unlike clinical psychology students) may be offered only a single course in ethics and professional issues before graduation. Their ignorance of basic skills and principles of practice (as opposed to theory) often leads to unintentional transgressions that come before the Bar Association’s disciplinary body. Berry says the Bar Association is involved in a national movement to encourage law schools to include practical lawyering skills and high standards of professionalism as a part of every academic course.

The third method of addressing incompetence is aimed at attorneys who wish to specialize. Berry is pursuing the establishment of certification programs that would set certain educational and experiential requirements (beyond law school) for lawyers who hold themselves out as specializing in a particular area, such as tax or divorce law. Consumers can have greater confidence in the expertise of the lawyer they hire, the thinking goes, if each has been certified in his field of specialization. (Opponents of such programs argue that minimal requirements are no measure of true expertise.)

The Voice of Experience 

One thing that both advocates and critics agreed on as a result of their experience with mandatory continuing legal education is that such programs are expensive. President Berry offered the following advice to psychologists, as we debate this issue: “If you have a mandate, there has to be a penalty for failing to comply. What’s the penalty going to be and how is it going to be determined whether there’s been compliance? There should be a pretty careful investigation of the costs of administration in advance because those costs are frequently underestimated.”