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Note: The following is re-blogged with the express permission of author, noted family law specialist, and Nevada attorney, Marshal S. Willick. It was originally posted May 25, 2018 as Volume 66 of the Willick Law Group‘s Newsletter.

Willick’s insights and prescriptions are timely, persuasive and on-the-mark. Among his key recommendations is that the Nevada Supreme Court “assess the efficacy and impacts of mandatory CLE.” His commentary is definitely must reading.

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Vol. 66 – The New CLE Fee Structure Stinks and Should Be Changed

A legal note from Marshal Willick about how Nevada’s CLE system has been made destructive to both education and scholarship while increasing dramatically in cost, and why only the Nevada Supreme Court – which ultimately is responsible for this mess – can do anything about solving it.

The cost of CLE in Nevada just increased by an order of magnitude while the number and variety of available offerings has been greatly curtailed, and scholarship is being actively punished.

I. WHAT CHANGED AND WHY

The Nevada Board of Continuing Legal Education was created in 1982; it is distinct from – but intertwined with – the Nevada Bar Board of Governors (“BOG”). In 2014, in a “turf” squabble, the CLE Board asked the Supreme Court to reduce the number of CLE Board members appointed by the BOG since the Bar was a “provider” and the CLE Board complained of a conflict of interest.

The CLE Board declared that to do its job, it had to be a “stand-alone” entity that was “financially self-sustaining” so as to “avoid or eliminate conflicts of interest.” It complained that the number of lawyers and fees only “grows slowly” but the Board’s “profitability erodes as operating expenses [primarily its own salaries and benefits] increase over time.” It complained that in 2014, the CLE Board expended $15,000 more than it received from fees, while quietly noting a “reserve” from prior fees received of over $600,000.

So the CLE Board submitted ADKT 499 to change its “business plan” from reliance on annual attorney CLE fees (and late fees), claiming (at the beginning, anyway) its intent to get the “hugely profitable” CLE providers to start funding the cost of mandatory CLE to “reduce or eliminate fees for the lawyers.” It apparently never occurred to the CLE Board to explain why it should seek to be “profitable.”

The new plan was supposed to replace lawyer CLE fees by imposing on “accredited” CLE providers an annual fee of $500 plus $5 for each credit hour earned by every attendee, with another $5 per credit to be paid by each lawyer. For “non-accredited” providers, the new business plan charged a $25 “application fee” per program plus $5 per credit hour per attorney to be paid by the CLE provider, with another $5 per credit to be paid by each lawyer.

Begrudgingly, the fees would not apply to providers “that are non-profit and do not charge attorneys for attending their programs,” or to “Federal, State, and local governmental agencies, nor for legal aid, provided they do not charge attorneys.”

The CLE Board predicted that the change would improve CLE in Nevada because “higher quality providers will accept new fees to continue operating in Nevada, while others will exit the State.” No explanation was suggested as to what denoted “quality” or how that had anything to do with being large for-profit enterprises.

The CLE Board also promised to increase efficiency and economy through use of electronic communications to replace paper, to streamline its processes, and to save staff time by ceasing to “cajole” or “hand-hold” lawyers and instead greatly increase financial penalties imposed against lawyers for non-compliance, predicting that doing so would actually decrease the total of those fees by increasing lawyer compliance.

The Bar opposed the reorganization and parts of the new CLE “business plan,” but agreed to collect the annual CLE fees along with annual Bar dues so that fewer lawyers would be confused and end up having to pay the very expensive “late fee” penalty that constituted 40% of the funding of the CLE Board.

After public comment, a hearing, and several rounds of written input, mainly from the BOG and other bar associations, the Supreme Court approved both the reorganization and the new business plan.

II. THE REAL WORLD AND CONSEQUENCES, INTENDED AND OTHERWISE

Many Nevada lawyers have complained about the CLE “industry” for years, noting that it was already much too expensive, and that for many lawyers it was a totally hollow exercise which generated money for both the Bar and the CLE Board but had no discernable effect on actually improving lawyer competence.

For example, see Legal Notes Vol. 33, “Make Lawyer CLE Meaningful” (Jan. 2011); Vol. 36, “Judicial CLE” (Mar. 2011); Vol. 40, “Other Updates to Prior Notes” (Jun. 2011), and Vol. 54, “Putting Your Money Where Your Mouth Is: Cheap & Useful CLE” (Oct. 2012), all posted at https://www.willicklawgroup.com/newsletters/.

Those notes stepped through the history of CLE in Nevada, detailing how it had devolved from the aspiration of promoting lawyer competence into the meaningless extraction of funds to fund the CLE bureaucracy, and how both the Bar and the CLE Board had ignored the obvious reforms that would make it actually useful to the public.

We detailed the huge sums involuntarily extracted from lawyers and being fed to the Bar, to the CLE Board, and to private companies, and protested that since all known studies showed no actual improvement to lawyer competency from mandatory CLE, what Nevada had created was a time-and-money-consuming bureaucracy that falsely portrayed itself as providing a service important to the public, but which actually did not make lawyers better or provide the public any useful information, and so did no actual good.

We explained how my firm was going to try to encourage reform by producing and presenting substantive and specialized CLE at no cost to attendees for the purpose of trying to improve the practice and drive down the fees charged by others.

And we expressed the hope that if that approach was emulated by a sufficient number of others, enough of the profit motive could be taken out of the CLE racket to cause the CLE bureaucracy to focus on actually serving the legitimate interests of lawyers, public, and the courts.

Over the following six years, we produced low-to-no cost CLEs on a wide variety of family law topics, with any money beyond the cost of snacks going to Legal Aid. The “Basics” series (Jurisdiction, Child Custody, Relocation, Property Division, and Practical Mechanics of Family Trial Practice) was acclaimed by those attending, as was the 1-hour Lunch-and-Learn series addressing topics from pension division to the new local rules.

And others did emulate that model – experts throughout the Bar started putting on programs at no cost in their various specialty areas, significantly enhancing the actual education of lawyers in multiple fields.

But this did not generate any money for the CLE bureaucracy, which reacted like a bureaucracy does, seeking its own perpetuation and expansion at the expense of those it purports to serve.

So now, if you want to give away your time, experience, and expertise for the benefit of others, you are required to submit a $25 “application” fee and pay another $5 for every credit that every attendee receives. In other words, for the privilege of volunteering to do all the work to provide a one-hour CLE for 30 people, you have to pay the CLE Board $175. If 100 people happen to show up, it will cost you $525. Lord help you if 1,000 people want to hear what you have to teach.

Who is exempted from paying these fees? The Bar, its sections, and specialty Bars, but only if all proceeds go to legal aid, or to TIP mentors, or the credits offered are 1.5 hours or less. Or if the provider is the government, or a non-profit agency. Otherwise, too bad. The full set of “how we intend to take more money from you” regulations is set out at https://www.nvcleboard.org/formsinformation.asp#.

And this was by no means accidental. The CLE Board, in the debate leading up to adoption of the new regulations, stated in its submissions that it fully intended to cause the “exit of low volume non-accredited providers.” In other words, prevent lawyers from teaching other lawyers for free.

The CLE Board brushed aside the fact that large for-profit providers would obviously pass along to their captive lawyer market the increased fees and costs and that the lawyers would end up paying a lot more every year, saying “Overall, the Board expects no more than a modest effect on provider pricing, as anecdotal input suggests.”

In other words, the CLE Board very deliberately wanted to destroy the ability of lawyers to provide free CLE, because it was not good for the bureaucracy’s income growth, actual damage to the education of members of the Bar be damned. And they knew all along that their new plan would not “reduce fees” to lawyers but would instead greatly increase them, and they didn’t care about that, either.

III. YOU EVEN HAVE TO PAY THEM TO PAY SOMEONE ELSE

The regulations are unclear on the point, but apparently you have to pay the CLE Board if you actually want to obtain specialized education and training in your field.

A divorce lawyer gets the highest-possible quality of education from programs put on by the American Academy of Matrimonial Lawyers. But if you go to the 3-day annual CLE in Chicago – paying to travel there, to register, and to stay out of town for three days – you apparently also have to pay the CLE Board $5.00 for every credit you already paid to get.

So the AAML annual meeting, with its 10.5 hours of general and ethics credit, will cost every attendee another $52.50. Every year. On top of the cost of anything earned in Nevada (you have to pay $5 for most credits earned here, too).

The system has been altered so that the more any lawyer seeks out specialized training and education to actually be better, the more expensive it will be. Low-quality, irrelevant, and outdated CLE can be found which is cheap, but of course signing up for such won’t actually make any lawyer any more competent. The incentives are backward.

IV. THE DELIBERATE DISCOURAGEMENT OF SCHOLARSHIP AND PUBLICATION

Every major legal publication in Nevada works hard to attract quality substantive articles – The Nevada Family Law Report, the Nevada Lawyer, the Clark County Communique, the Washoe County Writ, etc.

One of the few tangible benefits for spending the dozens of hours of research, writing, and editing it takes to create such articles has always been the ability to obtain CLE credit for helping to teach other members of the Bar through such publications.

Now, it will also cost you. Regulation 9 of the new CLE rules imposes a $25 fee to get credit for writing scholarly articles – so if you volunteer your time and expertise to help educate the Bar by writing an article for the NFLR or Nevada Lawyer, you have to pay for that, too.

It is hard to imagine a way to more actively discourage lawyers from volunteering their time and expertise to write scholarly articles. And this thought apparently did not even cross the mind of anyone involved in adoption of the new rules – it appears nowhere in the written record of ADKT 499.

V. THE NEW POLICY IS WRONG AND COUNTERPRODUCTIVE

The “mission statement” of the CLE Board is to ensure that Nevada lawyers “continue their education through a wide range of quality educational programs and to have and maintain the requisite knowledge and skills to fulfill their professional responsibilities.”

But every aspect of the new model discourages providing quality education or scholarship, and decreases what is available to Nevada lawyers who want to actually improve their knowledge and skills. Costs are increased for every lawyer, and the more a lawyer actually cares about getting the best possible education and training, the more it will cost that lawyer.

Every impact of the new plan is directly antithetical to the CLE Board’s supposed reason for existing – but it does feed more money to its bureaucracy. The priorities for those involved in the discussion seem crystal clear.

It is not as if the Supreme Court has not previously been presented with budget impacts related to CLE. In 2016, the Court approved an expansion of CLE from 12 to 13 hours annually, so that every lawyer, every year, had to get a credit related to substance abuse and mental health. We were already the fifth most-expensive-to-remain-in-practice Bar before that change.

Justice Pickering dissented from the addition, noting the minimum $1 million in cost/lost productivity that change would cost, and the entire lack of any empirical evidence that it would actually do any good.

It seems likely that with that new “business plan” being adopted, the CLE Board will make Nevada number one – in cost to remain in practice on zero evidence of any actual benefit to the bench, Bar, or public. Hooray.

VI. RESPONSES BY THE BAR AND SECTION LEADERSHIP HAVE BEEN INADEQUATE

Essentially every entity that participated in the debate over ADKT 499 was solely interested in looking out for its own budget and programs, with scant attention or concern for the lawyers who would end up paying the freight (or their clients, on whom the increased cost of the lawyers remaining in practice ultimately descends). Each entity was focused on trying to secure exemptions from the new fees – for itself.

The State Bar submissions at least claimed to be concerned for the general Bar membership – in addition to the Bar’s own fees and programs, of course – but with all the numbers thrown out during the debate for over two years, no one involved apparently took the time to project what the new policy would actually cost each individual lawyer.

More than anything else, the written submissions looked like Russell Long’s famous summary of input to how tax policy is made in Washington:

Don’t tax you,
Don’t tax me,
Tax that fellow behind the tree.
(William B. Mead, “Congress Tackles the Income Tax” (Money, July, 1973)).

As with the debacle that is e-filing in Clark County, which has been extensively detailed in these notes, it has apparently never occurred to anyone involved that the proper response to increased efficiency, automation, and technology is to lower the cost to the user. If the size of the Bar membership (apparently about 8,000), and the fees that all those members pay, is only growing “incrementally,” then the growth of the bureaucracy’s budget should be likewise constrained to “incremental” increase.

If that is not “adequate,” require the CLE Board to piggy-back on existing State Bar mailings, notices, and staff for functions and communications that can be combined for the purpose of lowering costs.

VII. AN ACTUAL SOLUTION TO THE “PROBLEM”

It is worth circling back to the policy that is supposedly being served by creation of this CLE bureaucracy and the massive money it takes to run it: improving lawyer competence, ultimately for the benefit of the public hiring those lawyers.

The actual “solutions” that would serve that policy goal are simple and cheap, as detailed in Legal Notes 33 and 54 seven years ago: If you want to ensure that lawyers are actually learning something at CLE, require providers to test them on the subject matter of the course. If you want the public to hire the best trained and most educated lawyers, have the Bar publicly post the CLE record of all lawyers so that the public can see the currency and validity of attorneys’ continuing education.

What is not helpful to either lawyers or the public is to fund an ever-better-paid CLE bureaucracy primarily fixated on its own perpetuation and growth.

VIII. CONCLUSIONS

By my estimate, the cost of CLE in Nevada just (at least) doubled, while the number and variety of available offerings has been drastically reduced. Half a dozen companies have pulled out of Nevada entirely, and free CLE offered by law firms has essentially disappeared. Our CLE Board is actively discouraging anyone from wanting to provide either education to others, or scholarship and authorship. The new policy is counterproductive in virtually every imaginable way.

Only the Nevada Supreme Court can do anything about this. The CLE Board will never do anything to reduce its own budget and growth, and neither will the Bar. Both of those entities report to the Court, which should start with figuring out what end results it is trying to produce, and then target policies and directives to actually achieve them.

Given the enormous costs in both time and money, it may be time to re-evaluate the value of the entire system. Getting empirical evidence as to whether mandatory CLE actually does any good would seem to be a good first step.

At bare minimum, policies that discourage volunteering and scholarship should be reversed. There should be no fee of any kind for providing CLE without charging for it, and there should be no fee of any kind for seeking credit for scholarly articles and publications. It would be a good idea to have some kind of sliding scale beyond that, so that folks that have a modest charge to attendees (for example, to finance lunch or renting space) are not punished for providing a public service.

Overall, the concept is that the CLE Board should be focused on facilitating the actual providing of useful information and training to members of the Bar at the lowest possible cost, rather than maximizing revenues to perpetuate its own bureaucracy.

The CLE Board long ago lost all sight of the purpose of CLE, and the bureaucracy spawned is now solely concerned with its own perpetuation, expansion, and increase in budget. As currently constituted, the Nevada mandatory CLE system does nothing measurable to improve the competence of lawyers or judges, and the Bar does nothing to let the public get any potentially useful information from or about it. CLE is now about nothing but funding.

There is no defensible rationale for what has metastasized into the current hot mess. The State Bar, on behalf of the general membership, should ask the Court to assess the efficacy and impacts of mandatory CLE, and the Court, on behalf of the lawyers and the public, should do so.

IX. QUOTES OF THE ISSUE

“In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control, and those dedicated to the goals the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.”
– Jerry Pournelle (Pournelle’s Law of Bureaucracy)

“Bureaucracies force us to practice nonsense. And if you rehearse nonsense, you may one day find yourself the victim of it.”
– Laurence Gonzales, Everyday Survival: Why Smart People Do Stupid Things

“Bureaucracies are inherently antidemocratic. Bureaucrats derive their power from their position in the structure, not from their relations with the people they are supposed to serve. The people are not masters of the bureaucracy, but its clients.”
– Alan Keyes

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”
– Thomas Sowell

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For some of the CLE materials and articles produced by the Willick Law Group, go to https://willicklawgroup.com/cle-materials/ and https://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.

If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.

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There was an apocryphal story — meaning it was likely bullshit — told by a law school professor about a 1-L engineer. As the story goes, the engineer turned wanna-be lawyer quit law school his first year because he was frustrated with the Socratic Method; the insufficiency of bright line rules; and the seeming poverty of absolutes in Law. For someone trained to give answers with an engineer’s precision, “it depends” was never going to be good enough. The Law may be a jealous mistress but it’s also an inconstant one.

https://upload.wikimedia.org/wikipedia/commons/thumb/5/5c/The_Scientific_Method_as_an_Ongoing_Process.svg/583px-The_Scientific_Method_as_an_Ongoing_Process.svg.pngThe point of the tale was clear. Empirical mindsets flee law schools. The scientific method is displaced by what’s called the legal method. One lawyer blogger observed that lawyers invert the scientific method, adding, “Luckily for attorneys, law is not science; it is not defined by reference to a pre-existing reality, and it is not limited to formulations that are consistent with this pre-existing state.” Precisely.

An “epidemic” of substance abusing lawyers.

So it was hardly a surprise that the lawyer commentariat would sigh with collective angst as soon as The New York Times published “The Lawyer, the Addict” subtitled “A high-powered Silicon Valley attorney dies. His ex-wife investigates, and finds a web of drug abuse in his profession.” The essay was penned by Eilene Zimmerman.

THE SKY IS  FALLING!!!

It wasn’t long after publication that the legal blogosphere ramped up, for example, here and calling it “an epidemic” here. Predictably, the-sky-is-falling.

One over-heated hand-wringer, a 2017 SMU Law grad even blogged at “In A Punishing Profession, Too Many Lawyers Are Paying The Ultimate Price,” “I hope law school candidates, law students, and lawyers take Zimmerman’s message to heart . . . the difference between heading the warnings and missing the signals can be life and death.”

As though all lawyer reputations needed further blemishment for the life choices of a few.

Just Say No.

https://upload.wikimedia.org/wikipedia/commons/thumb/2/20/NRJUSTSAYNO.jpg/160px-NRJUSTSAYNO.jpgThere are 1.3 million lawyers in the United States and like most of society, they are a cross-section of all that reduces and elevates the human condition. But thanks to the much disseminated tragic tale of the Silicon Valley lawyer’s drug overdose death and the accompanying quotes in the article from two recovering lawyers, the public might reasonably albeit illogically conclude that the million plus member profession is racked by addiction. Why not paint all lawyers with the same broad brush? Do we need a Nancy Reagan for lawyers?

To be fair, the story takes a stab at empiricism mentioning a Hazelden Betty Ford Foundation and American Bar Association (ABA) 2016 report that concluded “that attorneys experience problematic drinking that is hazardous, harmful, or otherwise consistent with alcohol use disorders at a higher rate than other professional populations.”

Data deficient conclusions.

Unfortunately, in their haste to pronounce knee-jerk remedies based on an incomplete sample size, the following cover your analysis (CYA) paragraph in the report is apparently being given short shrift. Could it be because it doesn’t buttress the narrative of a widespread drug and alcohol problem among lawyers?

“Our study is subject to limitations. The participants represent a convenience sample recruited through e-mails and news postings to state bar mailing lists and web sites. Because the participants were not randomly selected, there may be a voluntary response bias, over-representing individuals that have a strong opinion on the issue. Additionally, some of those that may be currently struggling with mental health or substance use issues may have not noticed or declined the invitation to participate. Because the questions in the survey asked about intimate issues, including issues that could jeopardize participants’ legal careers if asked in other contexts (eg, illicit drug use), the participants may have withheld information or responded in a way that made them seem more favorable. Participating bar associations voiced a concern over individual members being identified based on responses to questions; therefore no IP addresses or geo-location data were gathered. However, this also raises the possibility that a participant took the survey more than once, although there was no evidence in the data of duplicate responses. Finally, and most importantly, it must be emphasized that estimations of problematic use are not meant to imply that all participants in this study deemed to demonstrate symptoms of alcohol use or other mental health disorders would individually meet diagnostic criteria for such disorders in the context of a structured clinical assessment.”

Glossed over, too, is what the researchers declared was “the need for greater resources for lawyer assistance programs, and also the expansion of available attorney-specific prevention and treatment interventions.” Greater resources? I know of at least one Arizona lawyer assistance program volunteer who would agree. See “The Arizona Bar has no Member Assistance Program. They just want you to think they do.”

For mandatory bars, compulsory CLE is always the answer.

https://i.imgflip.com/10t4ve.jpg?a416544But instead of recommending comprehensive, objective evaluations to assess the need and efficacy of existing lawyer assistance programs, state bar associations instead look to more of the same: non-data driven ‘solutions.’ When legal elites perceive a problem, widespread or not, they do what lawyers do best, they impose rules. And the favorite option is imposing rules and regulations on others based solely on hasty generalizations. Verification or proof by observation are beside the point. Better to leap to a conclusion — not by data — but by guess and by golly.

The Bar’s easy fix is to write new rules to compel all lawyers, even the sober and abstinent to take a continuing legal education class in substance abuse and mental health awareness whether they need it or not. “Once more unto the breach, dear friends, once more” — but armed not with might — just an hour of untested mandatory CLE.

Nevada, for instance, was one of three jurisdictions requiring all active Nevada attorneys to take a minimum of one CLE hour once every three years on substance abuse, addictive disorders and or mental health issues. But as of January 1, 2018, Nevada will go everybody one better by increasing the total number of CLE hours annually required from twelve to thirteen, to include ten hours of general education, two hours of ethics, and one hour in the area of substance abuse, addictive disorders and/or mental health. Nevada Justice Kris Pickering, however, dissented stating, “I would expect evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them. Yet, there appear to be no peer-reviewed studies that examine the impact of MCLE classes on attorney alcoholism or substance abuse rates.”1

In the forced march history of CLE, there’s never been empirical proof much less data verifiably demonstrating that continuing legal education classes make lawyers more competent, more ethical or more professional. Will mandatory CLE make lawyers more sober? The only real certainty is that mandatory CLE has an indispensably salutary impact on a state bar’s bottom line. No wonder the legal establishment’s cognoscenti deem mandatory continuing legal education the answer to virtually every problem.

In the end, lawyers can always count on mandatory bar associations to impose further impingements on their liberty interests. It’s how they roll. Therefore, is it too extreme to conjure up what might be next? Specimen collection and random drug tests anyone?

 

 

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1 Nevada Supreme Court Justice Kristina Pickering’s dissent concerning the 13th mandatory substance abuse CLE hour is worth reading:

“Studies suggest that 20% of lawyers suffer from alcoholism or other addiction. This quintile of the bar accounts for more than 50% of the court’s bar discipline docket. These numbers, and the human and professional cost they represent, led me four years ago to approve amending SCR 210 to require one hour of continuing legal education (CLE) every three years on addiction and mental health issues. Directing that one out of the total 36 CLE hours required over a three-year period address these subjects seemed a modest imposition on the members of the bar if doing so accomplished this: ensuring all lawyers know about the help available free of charge through the Nevada Lawyers’ Assistance Program and the separate and entirely confidential Lawyers Concerned for Lawyers program.

“Today’s amendment to SCR 210 goes significantly further. It raises the number of mandatory CLE hours from 12 to 13 hours per year and specifies that the additional hour address addiction, substance abuse, or mental health.’ The cost of this increase to the 5,083 bar members who are subject to Nevada’s mandatory CLE requirements has not been calculated, or even acknowledged. Assuming a cost of $175 per hour for time not working and $25 per hour for tuition, both low estimates, we are looking at over $1 million in added annual expense. For that, I would expect evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them. Yet, there appear to be no peer-reviewed studies that examine the impact of MCLE classes on attorney alcoholism or substance abuse rates. And, while 18 states allow CLE credit for education on substance abuse and mental health issues, and three states have rules requiring an hour of substance abuse/mental health CLE once every three years, I have found none that have made it an annual requirement. As recognized by the states that make such education optional, not mandatory, there are other issues besides substance abuse and mental health on which CLE, chosen by the individual lawyer according to his or her interests and needs, is appropriate.

“While I share my colleagues’ concern with substance abuse and addiction in our society, generally, and in the legal community, in particular, I have true reservations about the wisdom and efficacy of today’s rule amendment. I therefore respectfully dissent.”

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Credits: Mad Scientist Photo Booth, by Zlaxfish Photography  at Flickr Creative Commons; Scientific Method, by ArchonMagnus at Wikimedia Commons, Share-Alike Attribution; Drawn live on January 23, 2010, by René van Belzen, Flickr Creative Commons Attribution-NonCommercial-ShareAlike; Nancy Reagan speaking at a ‘Just Say No’ Rally in Los Angeles, California. 5/13/87,” Wikimedia Commons, public domain; Puppet master meme generater at Imgflip;“Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license.

 

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If a petition submitted last year by Nevada’s Board of Governors is approved by the state supreme court, it’s going to cost lawyers a wee bit more money to practice in Nevada. Currently, Nevada lawyers are obligated to complete 12 hours of annual continuing legal education to keep their licenses. But if the state bar’s governing board has its way, a 13th hour will be tacked on to the annual requirement.

At an average cost of $40 per credit hour, this means that the 5th highest cost to practice mandatory bar in the U.S. will just be that much more expensive. Nevada will top out at just over $1,000 per year between mandatory annual fees of $490 and soon, 13 hours of mandatory continuing legal education.

The original petition asked that of the current 12 required hours of continuing legal education, 1 CLE credit be mandated in the area of “substance abuse, addictive disorders and/or mental health issues that impair professional competence.” Somewhere along the way, however, there was an increase in the total hours required. It became a petition that increases annual mandatory hours from 12 to 13 with the new required hour in the aforementioned areas.

Petition ADKT 0478 was filed with the Nevada Supreme Court in January 2016 with oral argument last June. Unfortunately, the chance to either complain or to applaud has come and gone. It’s only a matter of time now for the Court to issue its Order for ‘lucky’ No. 13. To quote Hank Jr., “It’s all over but the crying.”

Gobsmacked.

I really must crawl out from under my desert boulder. How did this newest imposition, this latest cost to practice burden slip past? The gobsmacking news came by way of the Nevada Bar’s “Message From The President” in the April 2017 Nevada Lawyer magazine.

I rarely read the dull bar magazine except for checking the Bar Counsel Report each month to see if anyone I know has been pierced by the sword of lawyer discipline. For some reason, I read Nevada Bar President Bryan Scott’s presidential epistle in April where he briefly mentioned the mandatory bar bureaucracy’s latest ‘feel-good’ do-something impediment. Scott also helpfully offered that “Supplementing this petition, the state bar has enhanced its curriculum to ensure attorneys have access to quality CLE programs related to these important topics.” Well, that’s no surprise. CLE is big business for state bars.

To be fair, in reply to my ‘ how dare you’ email query, Scott said, “We did not do this as a money-making venture. In fact, should the Court issue an order, we expect to offer a CLE on this topic at no charge.” Let’s see how long that lasts.

No proof CLE does anything.

I won’t paraphrase Roger “Verbal” Kint but the greatest trick ever pulled was convincing the legal establishment that forcing lawyers to take continuing legal education classes would make them more competent, more ethical, more professional or in the latest wrinkle in Nevada — more sober. The fact is there’s never been empirical proof that CLE delivers more competency, ethics, professionalism — or sobriety. As a matter of fact, there isn’t even the most rudimentary form of subject matter assessment since CLE participants are never tested to see what they have learned. The testing demands are greater getting a speeding ticket dismissed via a defensive driving course.

As for tutoring the trait of improved sobriety, the petition does a terrible job of explaining why a mandatory CLE in abuse, addiction and mental health issues is necessary. To be fair, there’s a talking point Scott sent that mentions studies from the 80’s that “have shown a connection between the legal profession and higher rates of mental health issues and related addictive disorders.” The same reference adds that “In February of this year, a more definitive study was released showing attorneys display addiction levels of dependent drinking at 20.6 percent as compared to 11.8 percent of a generally highly educated workforce.”

If that’s true, the rest of the population is in even worse shape. Should the Nanny State start requiring everybody take a class in sobriety? According to a Newsweek report, 30 percent of Americans have had an alcohol-use disorder. Citing a study published in the journal JAMA Psychiatry, the article states: “America has a drinking problem, and it’s getting worse. A new study shows that 32 million Americans, nearly one in seven adults, have struggled with a serious alcohol problem in the last year alone. It gets worse if you look at numbers across people’s entire lives: In that case, nearly one-third have suffered an “alcohol-use disorder.”

https://cdn.someecards.com/someecards/usercards/630ae40facf324702bf98d936c73f348eb.pngBut even if you take at face value that lawyers are worse on substance abuse/mental health than the rest of the population, where’s the proof a one-hour class does anything to fix the problem? Then again, if there’s one thing lawyers are good at is reaching their conclusions.

So appropriately, under “Conclusion,” the petition jumps to the conclusion that because the board of governors’ purposes include “upholding the honor, integrity, professionalism and dignity of the profession of law and the enhancement of the professional competence and ethical conduct of members of the bar . . . mandatory education in abuse, addiction and mental health is necessary.” And it’s also “essential to public protection.”

More lawyer shape-shifting in the offing.

In September last year, the Florida Supreme Court approved a rule amendment granting Florida the dubious distinction of being first to require lawyers to take at least three hours of CLE in an approved technology program as part of the 33 total hours of CLE that Florida lawyers are forced to take over a three-year period. More than half the states have adopted the duty of technology competence for lawyers. It’s only a matter of time before other jurisdictions follow Florida and start demanding mandatory CLE in technology courses, too.

The ABA is the organization we have to ‘thank’ for these new recommended mandates, including mandatory substance abuse CLE. And it now has one more recommended lawyer transformation encumbrance in the works. Be on the look out for mandatory diversity continuing legal education.

Not satisfied with approving a new diversity policy for itself directing its ABA CLE program panelists be diverse, last June the ABA passed Resolution 107.  It asks “licensing and regulatory authorities that require MCLE to make diversity and inclusion programs a separate credit, but without increasing the total number of hours required.”

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Photo credit: “Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license; “the view from below” by David Long at Flickr Creative Commons attribution license.

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(1) there’s no empirical support that mandatory continuing legal education enhances lawyer competency or professionalism and;

(2) the state bar has a financial interest in CLE marketing.

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https://upload.wikimedia.org/wikipedia/commons/thumb/7/70/Wooden_hourglass_3.jpg/300px-Wooden_hourglass_3.jpg

Image, Wikimedia Common

So here it’s almost year-end with so much to update and so little time, including that the Arizona State Bar’s ‘pay to play’ CLE precertification scheme was unexpectedly voted down by an otherwise management-submissive board of governors.

Conveniently overlooking that it started the commotion in the first place but acting now as though members suddenly mattered, here’s the Bar’s self-serving announcement, “After hearing comments from members and CLE providers, the Board of Governors has voted unanimously not to create a process for precertifying CLE providers.”

“Fanciful benefits” of CLE

But in place of other updates and since there’s a few more days before the last day of the year, let me instead here applaud colleague James C. Mitchell’s boldly trenchant move to petition to amend Arizona Supreme Court Rule 45. This is the rule that sets out the Court’s mandatory continuing legal education (CLE) requirements.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/8/80/The_Goose_That_Laid_the_Golden_Eggs_-_Project_Gutenberg_etext_19994.jpg/165px-The_Goose_That_Laid_the_Golden_Eggs_-_Project_Gutenberg_etext_19994.jpg

Arizona lawyer Mitchell petitioned the state supreme court last month to require an acknowledgement on all continuing legal education advertising, to wit,“that the value of mandatory continuing legal education (MCLE) is unproven and that the State Bar of Arizona has a financial interest in CLE marketing.” The acknowledgement would read as follows:

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Rule 45. Mandatory Continuing Legal Education
(a) through (k) [No changes]

“(l) Advertising. Any advertisement for a continuing legal education program, product or service offered by or in conjunction with the State Bar of Arizona shall contain the following disclaimer:

“The State Bar of Arizona makes no representation that this program, product or service will improve any attorney’s competence or protect the public. No evidence proves that mandatory continuing legal education provides such benefits. The State Bar seeks revenue from CLE programs, products and services.

The disclaimer shall appear conspicuously in capital letters in black type at least half the point size of the largest type in the advertisement, but in no event smaller than 12-point type.”

______________________________________________________________________

As he writes in his petition, “The statement would align claims for mandated CLE with available evidence of its value, acknowledging that CLE as practiced has little or no verifiable impact on attorney competence or public protection.

“This amendment is needed to create transparency in a significant program of law practice regulation. It would protect the public and lawyers themselves from deception by unproven claims of value in a mandated scheme of so-called continuing legal education, and protect the State Bar from potentially making or embracing false claims of value in products and services that it provides for money.”

Asking for “honest disclosure.”

Of course, the Court will never approve this petition and will most likely deny it without explanation. Still, kudos to Mr. Mitchell for daring so eloquently and so wittily to expose what most of us already knew, MCLE is bare of verifiable, substantiated argument.

Calling for truth-in-advertising and referring to the Bar’s claims about CLE content quality as “hyperbole,” he adds, “. . . until that joyous day when MCLE joins Smell-O-Vision films and Michael Dukasis’s tank in Terrible Idea Heaven, Petitioner simply urges this Court to order a policy of honest disclosure in advertising.

“None of the Bar’s hyperbole likely violates the prohibitions on false and misleading commercial speech in ARIZ. REV. STAT. § 44-1481(A)(1) (fraud-in advertising statute bars omission of material facts) or our own ER 7.1 (material omission prohibited in communication concerning a lawyer’s services). But should our State Bar really slither through the same loopholes that permit overselling automotive clunkers? Should our State Bar, when advertising, omit material facts in a way that no ethical advertising lawyer may? Should the State Bar claim a right to withhold essential information about CLE’s worth, namely the fact that none has been proven? Petitioner respectfully suggests that it should not. We’re lawyers. We should do better. We should get out front with the truth.”

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/f/fc/Hands-Clapping.jpg/312px-Hands-Clapping.jpgTo which I cheer, “Bravo, bravo, bravo!”

Read the entire petition here.

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Photos: From The Æsop for Children, by Æsop, illustrated by Milo Winter at Wikimedia Commons, public domain;La publicite en France par Emile Mermet, advertising poster, ca. 1880 by trialsanderrors at Flickr Creative Commons attribution;hands clapping, Wikimedia Commons.

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File:Falafel.JPG“What the falafel?” I rhetorically asked after two colleagues separately emailed me the past day about the State Bar of Arizona’s new CLE Institute Training Program.

Ahead of the Arizona Bar’s likely imminent approval of a new CLE provider precertification system that passes on more costs on lawyers, comes the same “friendly state bar’s” new “voluntary faculty development program.” Participants sign up for $50 apiece to attend a CLE Institute to become a “State Bar Certified CLE Presenter.” Wow!

Apparently someone had a brain infarction that Arizona lawyers were clamoring for such a credential! If I’d only known. Just tell me, though, when “voluntary” becomes “mandatory.” Meantime, my right-hand wearies from one-handed clapping.

Hushpuppies 5stack.jpgAccording to the Bar’s promotional flyer, attendees take part in a day-long “training session” in full business professional dress. They view pre-recorded video lectures and create a 10-minute video presentation for analytical discussion. On completion, they’re required to chair or take part in a SBA CLE program within 12 months of graduation.

On second thought, skip the falafel and pass me a hushpuppy! In truth, I never acquired a taste for either although I have friends who’ll drive miles for a good falafel sandwich. Don’t know about the hushpuppy. As for me — hand me a gyro.

But enough about food, frivolity and the foolhardy. So just before the Arizona Bar makes it more difficult for third-party providers to market and sell CLE, here’s more FREE CLE.

PLEASE NOTE: The in-person Phoenix, AZ CLE program worth “up to 7.0 CLE hours, including 1.0 Ethics and 1.5 Domestic Violence Plus BONUS .5 credit during lunch hour” is not technically FREE — but requires a $65 payment for materials, lunch, snacks and refreshments. All the same, quite the deal!

The usual disclaimers about content quality, jurisdictional acceptability and continued availability apply.

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LexisNexis® presents a Complimentary CLE-eligible* Webinar: Finding Shelter After the Storm: Survival Following Hurricanes, Earthquakes, Floods and Fires

Wednesday, September 24, 2014
2:00 – 3:35pm ET (11am PT)
95 minutes
1.5 CLE Credits

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Is Your Legal Hold Process “Reasonable” Under the Updated FRCP?

Presented by Exterro as part of its E-Discovery Masters Series

Webcast: October 1, 2014 at 1:00 p.m. Eastern (10:00 a.m. Pacific)
Space is limited. Register Now!
CLE-Accredited Webcast but separate registration is required on www.nacle.com/exterro to receive CLE credit.

____________________________________________________________________

Keeping Legal Minds Intact: Mitigating Compassion Fatigue Among Legal Professionals

American Bar Association

Wednesday, October 22nd at 12:00pm-1:30pm CST

1.50 General CLE Credit Hours, FREE

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=135023765

____________________________________________________________________

How the Separation of Powers Informs the Executive Duty to Defend the Law  

Case Western University Law School

OCT 2, 2014
4:30 P.M. – 5:30 P.M.

1 hour of in-person CLE credit available, pending approval

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Volunteer Atty & Child Advocacy seminar

Defenders of Children and Arizona Summit Law School

LIVE IN-PERSON CLE PROGRAM

‘KEEPING IT REAL’ Educational Seminar
Seating is Limited.
RESERVATIONS ARE A MUST!

FRIDAY, OCTOBER 31, 2014
8:15 a.m. to 5:00 p.m.

AZ SUMMIT LAW SCHOOL
1 N.Central Ave. (at Washington)
PHOENIX, AZ 85004

$65 Early Bird received during September ensures the full day’s amenities, materials and lunch.

Educational credits available for lawyers and mental health providers with an interest in Family and Juvenile Court.

REGISTER AT:
https://events.r20.constantcontact.com/register/eventReg?oeidk=a07e9tab5l6c4f4fe81&oseq=&c=&ch=
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Photo Credits: Falafel, at Wikimedia Commons by Jerem at fr.wikipedia under the GNU Free Documentation License; Hushpuppies 5 stack, Uploaded by CrazyLegsKC, Wikimedia Commons under Attribution-ShareAlike 3.0 Unported license.

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https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/d/d1/Avarice.jpg/321px-Avarice.jpg“When somebody says it’s not about the money — it’s about the money.” – H.L. Mencken

This Friday, the State Bar of Arizona considers whether or not to ask the state supreme court to approve a precertification system for organizations offering continuing legal education (CLE) in Arizona.

Those favoring a first-ever pay-to-play arrangement wherein CLE providers have to pay a fee to be Bar-accredited to sell credit-eligible courses in Arizona are making like it’s all good. They’re saying it’s about insuring program quality and attorney competency; enhancing member services; and advancing the Bar’s mission to protect the public — from its lawyers.

But recalling Mencken and as every lawyer who’s ever heard clients sayit’s not about the money’ knows — the proposed change is about the money. And we’re talking about a lot — well into the 7 figures of gross revenue, at least here in Arizona. For mandatory and voluntary bars across the country, continuing legal education is a cash cow business.

And thanks to the Arizona Bar’s latest proposal to require provider precertification, it means to keep its cash-generating bovine healthy by:

► Generating more money via another CLE revenue stream and by;

► Protecting its $2M+ annual CLE revenue turf from increased competition from third-party CLE providers.

How high the annual or course-by-course certification fees will be is anybody’s guess. However, the Bar subcommittee recommending the changes noted that other state bars have annual fees ranging “from $100-$500.”  Unfortunately, the subcommittee neglected to similarly emphasize that the mandatory continuing legal education jurisdictions of Nevada, Wisconsin, Missouri, Arkansas, Indiana, and New York have CLE certification guidelines but without fee generating mechanisms. See http://www.barancle.com/mcle/course-application-requirements/

Those aforementioned states, which include both mandatory and voluntary bars, only require lawyers to comply with MCLE — but do not impose accreditation fees on providers. See https://www.reqwiredlegal.com/reqwired/resources/ and http://www.barancle.com/mcle/mcle-requirement/ And why not mention that the jurisdictions of Michigan, South Dakota, District of Columbia, Maryland, and Massachusetts have no MCLE requirements at all?

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/3/3d/Limbo1.JPG/1024px-Limbo1.JPGTo be fair, there’s talk here of possible exemptions for non-profits and local organizations that do not charge dues and seminar registration fees, which must mean that unlike the non-profit Arizona Bar — such organizations have to undertake CLE strictly as a labor of love.

Sarcasm aside, it presumably means law firms with free in-house employee CLE would get a pass. Yet undetermined, though, is whether state agencies or state-funded organizations would be charged fees or reduced fees and whether or not Arizona lawyers would be charged to get credit approval for non-Bar accredited third-party CLE.

Another under-publicized Bar vote.

Politicians 19But for a belated blast email asking for member comments 9 days before the vote, Arizona’s lawyers might not have heard of the significant changes planned. That said, since lawyers are often too busy to pay attention to every email in a glutted inbox, I suspect very few of Arizona’s 17,300 active members will have heard of the proposal. They’ll find out only after the proverbial die’s been cast.

Seems the Bar learned nothing from the brouhaha it stirred when it tried last December 2013 to pass a 22% lawyer licensing fee increase when they thought no one was looking. Because of lawyer objections concerning insufficient due process and lack of transparency, the Bar had to table that vote. Unfortunately, despite subsequent revelations of bureaucratic bloat and budgetary waste, the Bar eventually eked out a 12-11 vote to hike Arizona lawyer dues albeit by ‘only’ 13% instead of 22%.

So no surprise to jaded Bar members about this latest under-publicized move by the ‘friendly state bar.’ Stoically resigned Arizona lawyers already know that despite an almost $15M annual budget; a just-passed dues increase; and a projected nearly $4M surplus by 2019, Bar leadership has sufficient brass to ask members to sustain one more financial burden on their practices. The imposition of new cost-of-business fees on third-party CLE providers will be passed on to participants.

The emperor has no clothes.

The irony of all of this is that from the first imposition of mandatory continuing legal education, lawyers have questioned the faulty assumptions and false conclusions underpinning it.

Indeed, as prominent Nevada family law attorney Marshal Willick writes in his brilliant post All studies known to date show no benefit whatsoever to imposition of mandatory CLE programs in terms of lawyer competency.  What we have is a time-and-money-consuming bureaucracy that falsely portrays itself as providing a service important to the public, but actually does not make lawyers any better, or provide the public any useful information; in short, it does no actual good.

Man with American money uid 1“Why would the organized Bar – formed for the stated purpose of serving the Bar and public – demonstrate such gross incapacity to see that the emperor has no clothes? Because, even beyond the PR value of the appearance of doing something valuable, there’s money to be made.”

And for additional perspectives concerning the absence of studies that mandatory CLE verifiably improves the quality of legal services or ensures the competency of lawyers, also see, e.g., “The MCLE Question No One Wants to Ask” at http://www.law21.ca/2013/04/the-mcle-question-no-one-wants-to-ask/ and “Colossal Cave-in: Why Reform of MCLE Was DOA” at https://www.myazbar.org/AZAttorney/PDF_Articles/AZAT0201-MCLE.pdf  and “Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?” at http://bit.ly/1uRNLDq R

Irksomely, however, mandatory CLE will continue to exist because state bars make a lot of money from it.

Bureaucrats.PNG

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”Thomas Sowell

The creation of yet another bureaucratic department at the Bar staffed with either more clerical or legal staff to vet CLE programs is a fiscal step in the wrong direction.

Among similarly-sized state bars, the Arizona Bar already has the dubious distinction of having one of the highest lawyer licensing fees; one of the largest annual budgets; and one of the biggest administrative staffs and exceptionally well-paid executive cadre in the country.

Instead of looking at fiscal discipline and cost-controls, this latest initiative virtually assures more member dues increases to satisfy the ongoing demands of the new bureaucracy created to qualify, certify, track and audit CLE providers in the future.

Whether there’s enough fiscal good sense left among the Bar’s Board of Governors to stop the proposal remains to be seen.

But when you’re talking Bar bovine bankrolling protection — don’t bet on it.

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Photo Credits: Deadly sins, Avarice, by Jesus Solana at Flickr Creative Commons-requiring attribution http://www.flickr.com/photos/pasotraspaso/6953271968/; The Emperor’s Clothes by Vilhelm Pedersen at Wikipedia Commons, public domain; Revenue by Simon Cunningham at Flickr via Creative Commons license requiring attribution; Limbo Dancer by Mariegriffiths at Wikipedia Commons under the GNU Free Documentation License; Imag0361, by Bruce Biles at Flickr via Creative Commons license requiring attribution; Money, by Philip Taylor at Flickr via Creative Commons license requiring attribution; Bureaucrats, by Raafael at Wikimedia Commons via Creative Commons Attribution-Share Alike 3.0 Unported license; Cash cow, adopted from watchingfrogsboil at Flickr, Creative Commons, Attribution-NonCommercial-ShareAlike 2.0 Generic license.

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