I’m hearing rumblings that the Colorado Supreme Court Board of Continuing Legal and Judicial Education is reviewing the rules and may make some changes. I don’t know if they’re looking at big changes or small changes. I don’t know if they already have favored changes. But if I was on that board, I would take a closer look at these three CLE environments, all of which are, in my view, preferable to our current system:
1. Put more burden on the provider to account for learning outcomes
CLE rules vary state to state, but in Colorado there are relatively few burdens placed on the provider. This means that providers nationwide (some good, some not so good) flood the market with programs for Colorado lawyers. Like the providers themselves, some of these programs are good. Some are not so good. But it is virtually impossible to tell the difference because they all look exactly the same. There is a program agenda with catchy titles. And there is a lecture-based approach, where another lawyer teaches you from the podium. There is almost never a curriculum with courses that build on each other. So you go to the seminar and you take some notes. Maybe you learned something, maybe you don’t. But you get your credits.
A better system would require providers to identify learning outcomes and to share them with lawyers. This allows the responsible lawyer to make more informed decisions about his or her professional development. It also allows the lawyer to evaluate the class (through the regulatory body) based on whether it actually taught what it promised to teach.
2. Put more burden on the lawyer to account for learning outcomes
In 2010, the Colorado Lawyer asked, “Why did you become a lawyer?” One responded, “I wanted to be required to take 45 units of general CLE and 7 units of ethics CLE every three years.” Many lawyers no longer view CLE as an opportunity for professional development–if they ever did. This is why they swap CLE on Craigslist, no matter the subject matter (I have actually seen this). This is why they scramble to get 2.3 credits of anything as they near their CLE deadlines. CLE is like the bar exam to most practicing lawyers–it is a hurdle that has little to nothing to do with their practices.
But CLE wasn’t created to be an arbitrary hurdle. And, contrary to popular belief, it wasn’t created to be a profit center for bar associations or for-profit startups. Here’s the preamble to the Colorado rules:
“As society becomes more complex, the delivery of legal services likewise becomes more complex. The public rightly expects that practicing attorneys, in their practice of law, and judges, in the performance of their duties, will continue their legal and judicial education throughout the period of their service to society. It is the purpose of these rules to make mandatory a minimum amount of continuing legal education for practicing attorneys and judges in order to foster and promote competence and professionalism in the practice of law and the administration of justice.”
Turns out CLE serves a higher purpose. But it’s easy to lose sight of that because, for lawyers, it has become a credits game. It doesn’t have to be that way. What if we got rid of credits altogether and asked lawyers to develop individual education and professional development plans? In a given timeframe, they would reflect on their practices, identify skills and competencies they need, and map out the classes (or other projects–these might include research, articles, or pro bono work) they need to get there. After completing all classes and projects, they would evaluate their learning experiences and begin the process anew.
If this all sounds naive or unattainable, consider this: there’s a jurisdiction in Canada already doing something similar.
3. Get rid of CLE requirements altogether
One of the best CLE programs in the country is ICLE. ICLE is consistently leading CLE providers–both nonprofit and for profit–in innovation. In fact, CLE organizations from around the country send teams to ICLE to learn more about how they do what they do. Why is all this interesting? Because ICLE is the education provider of the State Bar of Michigan, and Michigan does not have mandatory CLE. This means that ICLE has to design programs that attract lawyers simply because the programs are valuable to their practices. As a result, they spend every day thinking about how to make their customers better lawyers–today and tomorrow. And their lawyers also get to focus on being better lawyers, instead of focusing on how many credits they have in December. It’s a result that is hard to argue with.
The best argument against a non-mandatory system is, of course, that some lawyers won’t continue to educate themselves. Fair enough. But in a system like the current Colorado system, which allows irresponsible lawyers to shortcut true learning and development in the pursuit of empty credits, are those lawyers truly educating themselves anyway?