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Posts Tagged ‘MCLE reform’

https://cdn.morguefile.com/imageData/public/files/g/GromovatayaIrina/03/l/1458732114nc9vo.jpgIf the American Bar Association (ABA) is underwriting something — America’s lawyers be wary. This is the organization led a few years ago by an oblivious President with the stones to blame students for opting for law school in a declining economy — this while the selfsame was roundly criticized for its own considerable regulatory failings.

And despite having done more than its share to create the lawyer glut, the ABA stands around even now, in the words of one critic, “limp-wristed” while law schools race to the bottom repeatedly lowering LSAT admission scores trawling for matriculants as enrollments decline. Any wonder another commentator declares, “The ABA can’t be trusted”?

More recently, politically correct ABA do-gooders have recommended bar associations adopt a “speech code” for lawyers — the violation of which means discipline.

And just days ago, the ABA House of Delegates adopted a new model rule concerning continuing legal education, recommending in part that state bars uniformly impose a 15-hour minimum continuing legal education requirement per jurisdictional reporting period. As usual, the ABA trots out the self-serving claptrap offered without a scintilla of empirical proof that “MCLE continues to play a crucial role in maintaining public confidence in the legal profession and the rule of law and promoting the fair administration of justice.” Pretentious pretextual poppycock notwithstanding, left out as usual is the truth that MCLE mostly serves to line bar association coffers nationwide. Ka-ching!

Such was the context for the announcement of a pro bono survey project launched by the ABA last year. It was just rolled out in Arizona.

On its website, the ABA explains it offered “its pro bono survey instrument, free of charge, to states interested in studying various aspects of the profession’s pro bono culture.” One can only guess what that means although after welcoming survey-takers, the questionnaire reveals its intentions:

“You have been asked to participate in this survey so that we may gain a better understanding of legal services provided to low and moderate income people in your state. This is a nationwide effort to quantify and recognize the pro bono work provided by attorneys, as well as to understand the factors that encourage or discourage pro bono service. We are interested in the perspectives of attorneys who have provided such services as well as attorneys who have not.”

What the “better understanding” leads to, however, is another question. Otherwise, to the frequently asked question, “What are the states expected to do with the results?” — it answers:

The ABA encourages the state leadership teams to review the findings and collaborate to generate state program and policy recommendations. In the summer and fall of 2017, the ABA will facilitate conference calls with each of the participating states to review the findings and discuss recommendations.”

https://cdn.morguefile.com/imageData/public/files/j/Jamierodriguez37/03/l/1426633399eunhs.jpg Carrots turned cudgels.

Since I ignored the first email solicitation from the Arizona Bar CEO to take the survey, last week I received a reminder to “take a few minutes” to participate in “this worthy effort” along with “an incentive to complete the survey.” No further reminders necessary for this resolute non-participant.

Based on the time it took Nebraska lawyer survey participants to complete the survey, it’s anticipated it will take lawyers more than “a few minutes” since Nebraska participants took an average of 32 minutes to finish it. And ostensibly an anonymous survey, that anonymity flies out the window if Arizona Bar members elect the Bar’s incentive to “be included in a drawing for a $150.00 gift card.”

In 2014, the State Bar of Arizona dangled a $250 Visa gift card as the sole prize for contestants vying to create a 15-second Instagram video with the mandatory phrase, “Finish the ballot. Vote for the judges!” To the best of my knowledge, the Bar never disclosed the winner or the wining video most likely because of embarrassing sparse participation. More recently, the Bar offered another gift card incentive to induce participation in its triennial lawyer compensation survey.

Compulsory lawyer servitude.

Ever the jaundiced one, I suspect these surveys will be used to advance program and policy goals of those clamoring for mandatory pro bono. Their salivary glands have never stopped drooling ever since New York became the first state to mandate pro bono work.

In New York, the forced pro bono rule was inflicted on law school graduates as a condition for bar admission. New York bar applicants must perform 50 hours of pro bono work before they can be admitted and some day hope to earn a living as lawyers.

Unlike other professionals, lawyers inexplicably remain the sole special snowflakes compelled to belong to their trade associations as conditions to earn a living. And soon enough lawyers may be the solitary profession whose services should also be compulsorily given away.

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Credits: Morguefile.com, no attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license.

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https://i0.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://i0.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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