Attorneys are an extremely diverse group of people with differing points of view and thought processes. The old cliché about asking three lawyers to interpret a law and getting back four different opinions may be a cliché, but its true. We don’t agree on much.
But if there’s one thing that almost all lawyers (at least in California) can agree on, it’s this: We hate MCLEs. For those non-lawyers who may be reading this, allow me to explain what an MCLE is and why we despise them.
To become a lawyer, one must graduate from high school, and then spend another four years getting a college degree. (It doesn’t matter what you major in. The State Bar doesn’t care what, if anything, you actually learned as an undergraduate. They just want you to have the degree. I was a Drama major). After that comes three years of intense professional training intended to suck out your soul, better known as law school. As if this isn’t enough, the State Bar also makes you pass, while in law school, a Professional Responsibility exam, to make sure you know that you’re not supposed to do things like use client trust funds to pay for a booze and cocaine-filled weekend in Barbados with prostitutes. Once you’ve done all that, you’re finally ready for the dreaded Bar Exam, which back when I took it in 1995, was three straight six-hour days of examinations to see if you can remember what you spent three years learning in law school. Only after passing the bar exam can you practice law.
But apparently, that’s still not enough. Because in addition to all that training, the State Bar requires every lawyer, as a condition of renewing their law license, to spend 25 hours every three years on Minimum Continuing Legal Education classes. (MCLEs). So every three years, every lawyer in California must send in a form to the State Bar listing the MCLE classes they took, and certifying that they actually took the classes they claim to have taken. There is also the possibility of a lawyer being audited, meaning the State Bar may require you to produce certificates from the education providers who gave the classes. This is why every MCLE class comes with a certificate.
Some of you may be thinking, “What’s so unreasonable about having to learn things related to your profession?” Fair question. I would first point out that lawyers already have a built-in incentive to keep themselves updated on developments in the law that pertain to their legal fields. That incentive is their professional reputation. If you’re making a living as, for example, a divorce lawyer, and the laws regarding divorce, child custody, and child support change, you’d better learn them or you’re soon not going to have a job or any clients. No client is going to be satisfied with their lawyer being an expert in divorce law as it existed 20 years ago.
If all that was required of lawyers was to take 25 hours worth of continuing education classes every 3 years, I don’t think most of us would have a problem with it. But it’s not. Of the 25 hours, a certain number has to be in the field of legal ethics, elimination of bias (In fact, the State Bar was so concerned with making us take an elimination of bias class that they are now making us take separate classes to learn about explicit bias and implicit bias), and substance abuse prevention. I deeply resent this last one. I’ve been a licensed attorney for nearly 28 years, and I’ve never had anything even close to a problem with substance abuse. I don’t need a class on how to prevent substance abuse. Whatever I’m doing, it’s working. To paraphrase Jay-Z, I got 99 problems but substance abuse ain’t one of them.
But what makes the State Bar’s MCLE requirements even worse is the fact that fully half of the 25 hours have to come from “participatory credits”. What this is means is 12.5 of my MCLE hours can come “Self-study”, which is me reading an article or a packet of material. That’s fine. But the other 12.5 hours have to come from me either listening to or watching someone give a lecture, either virtually or in person. In other words, we have to be spoon-fed the material.
So, with that very-long windup, I can now get to the part where I explain why the State Bar thinks lawyers are liars.
When I worked for the Sheriff’s Department, getting the MCLEs done was relatively easy. I was responsible for being the general legal advisor to the Detention Services Bureau (the jails). Every few years, the Sheriff’s Department would send me to a days-long series of seminars (usually in Las Vegas) devoted to jail law. These satisfied my “participatory credits”. Now that I’m self-employed, I’m having to find classes on my own to satisfy participatory credits. After I purchased (for the first time in my life) a professional liability policy, I learned that the insurance company had a library of lectures that their policyholders could download to satisfy their participatory MCLE credit requirement. Awesome. I found one having to do with Private IRS Letter Rulings, which is a topic that is very relevant in the field of Estate Planning. I downloaded the lecture and tried to download the certificate. But…
….the MCLE provider, in a move that seems like it just had to be something that was ordered by the State Bar, will not release the completion certificate without proof that you listened to the whole lecture. How do they do that with a lecture that you’ve download as an audio file? Four times during the lecture, the lecturer will shout out a number. In order to get the certificate, you have to type in the four numbers that were shouted out during the lecture.
While I must admit that this is an effective way to prevent “cheating”, it begs the following question: Why does the State Bar think this is necessary? They must be pretty certain that if allowed to do so, attorneys would just download the lecture and not listen to it, but mark it as completed on their MCLE compliance forms.
So in other words, even the State Bar thinks attorneys are liars.
But here’s the thing: I don’t think, in this instance, that the State Bar is wrong. I do think a significant number of attorneys would, if they knew they could get away with it, fudge the MCLE form and claim to have listened to the full lecture even when they hadn’t done so.
But to me, this says more about the State Bar’s MCLE requirements than it does about lawyers.
I have dealt personally with hundreds, if not thousands of lawyers in my 27+ years in practice. With less than a handful of exceptions, all of them were scrupulously honest and would never do anything that could even be construed as dishonest in their professional life. The vast majority of attorneys are deeply conscientious and honorable people.
So why do I think many lawyers would fudge their MCLE forms? Because the MCLE requirements are utterly ridiculous, absurd, and a drain on a lawyer’s time. Lawyers are among the hardest-working professionals around. Many of them work 80-100 hour workweeks. Even though who don’t work those insane hours are extremely busy during their workdays. There are no lawyers playing “Minesweeper” at work. They are too busy working through lunch representing their clients and meeting unforgiving deadlines.
In other words, lawyers don’t have time for busy work. And in reality, that’s what MCLEs are: “busy work” for people who are already way too damn busy.
So it doesn’t surprise me that when a lawyer who has eaten lunch at her desk the last four days, has walked into the office at 7am and not gone home before 8pm for the last two weeks because she’s preparing for a trial, or working an Summary Judgment motion that her client and the partners all expect her to win, and hasn’t had any quality time with her spouse or kids in the last month, is told she has to somehow make time out of her day to sit and listen to every goddamn word of a two hour lecture about bias or substance abuse, she just might be tempted to think to herself “This is total horseshit. I’m not doing this. I have actual work to do!”
The State Bar can and should fix this. While I think a strong case could be made for the elimination of MCLE requirements altogether, the State Bar doesn’t need to go that far. They could reduce the amount the MCLE hours needed. There is already plenty of incentive for lawyers to keep up with developments in the law. There is also no need for mandatory classes on bias or substance abuse. If a specific lawyer is found to have issues with bias or substance abuse, then the State Bar can and should require additional classes in these areas for these lawyers. Finally, there is no need for “participatory credits”. If a lawyer finds that they can satisfy their MCLE requirements more efficiently with self-study, they should be allowed to do that. No attorney should be forced to take time away from their clients or their family to listen to 12.5 hours of lectures that are completely unnecessary to their professional development, and amount to just “busy work”.
Now, if you’ll excuse me, I have 6 more hours worth of lectures I have to listen to by the end of January. I have a feeling that I may just get “audited” this year.
ST