Mandatory Continuing Legal Education: a Study of Its Effects
| Publication year | 1984 |
| Pages | 1789 |
1984, October, Pg. 1789. Mandatory Continuing Legal Education: A Study of Its Effects
A study was undertaken and completed in February of 1984 under the auspices of the Colorado Board of Continuing Legal and Judicial Education ("Colorado Board") to determine the effectiveness of mandatory continuing legal education ("MCLE"). The study was conducted by searching periodical literature and surveying, on a national basis, members of the bar, bar association executives, MCLE executives and many others with an interest in continuing education. Studies done in various states prior to their adoption of MCLE were relied upon heavily in this study.
The general results of this study are presented here to inform the Bar of what the MCLE experience has been in Colorado and other states and to apprise those interested in MCLE of what is being done by the Board to keep abreast of developments in the field. Statistical tables and other information relating to the study may be obtained from the office of the Colorado Board, 190 East 9th Ave., Suite 410, Denver, CO 80203; (303) 832-3693.
Colorado has had MCLE since 1979 and another twelve states currently have an MCLE requirement.(fn1) Little has been done to evaluate the effect of MCLE in any of those jurisdictions due to the difficulties inherent in such an evaluation and the fact that MCLE has been in effect such a short period of time. Some of the difficulties inherent in evaluation include:
1. The state of the art in continuing professional education---the process by which needs are assessed and programs are designed, developed, conducted and evaluated.
2. The absence of reliable evaluation techniques to measure short- and long-term learning outcomes.
3. The inability of the professions to determine what constitutes competence, the dynamics of competence and the varying levels of competence required of professionals.
4. The inability to determine the relationship between competence and continuing education.(fn2)
Concern about lawyer competence was most emphatically brought to the public's attention in a 1973 speech by Chief Justice Warren Burger which was highly critical of lawyer performance.(fn3) This event seemed to be a catalyst in the movement toward MCLE, which was deemed by its proponents as one logical remedy to increase lawyer competence. Other factors adding to this concern were that the law is becoming increasingly more complex and interdependent and that there is rapid expansion and change in the law, an increase of public comment and criticism by leaders of the Bench and Bar and, as a result, the possibility of legislatively mandated recertification.(fn4)
It has been recognized that there is a general and sincere desire on the part of the Bar to upgrade the competence of lawyers.(fn5) MCLE was thought to be a means of accomplishing this for, while it was recognized that many attorneys kept pace and maintained or improved their skills, others clearly did not.(fn6) MCLE was one way of helping to insure that all attorneys would at least minimally participate in furthering their learning.
While realizing that MCLE would be distasteful to some, the primary concern of its supporters was how to better serve the legal consumer.(fn7) They were convinced that the improvement was through continuing legal education and required attendance. On the other hand, many in opposition questioned the wisdom of such a drastic move and registered the following concerns:
1. Would enough courses be available to meet the increased demand created by the requirement?
2. Would course quality diminish as numbers of courses increased?
3. Would costs increase resulting in hardship to many lawyers?
4. Would regulation of the requirement be unduly difficult?
5. Would implementation of the requirement be only a response to outside pressure?
Opponents also wondered whether voluntary CLE wouldn't be as effective as mandatory CLE and whether MCLE would really affect the level of lawyer competence.
MCLE has stimulated the growth of CLE programs nationally and thus increased the opportunities for lawyers to further their education. Accessibility to programming has also been improved in that rural areas are better served, both with live and video presentations.
Although there is no quantitative or definitive proof that courses have improved because of MCLE, the Colorado Board definitely believes that they have. The requirement that high-quality written materials be available before or at the program has strongly influenced the quality of courses accredited in Colorado. Also, polls taken of lawyers subject to MCLE indicate that, in general, the quality of programs is good.
The cost of CLE seminars has increased, but there is no proof that this
Regulation and enforcement of the mandatory rule have not proved difficult. In actuality, there is little regulation except review of courses, compilation of records and enforcement. Lawyers are left on their own to attend courses that will, in their own minds, satisfy both their needs and what is required by MCLE.
Public pressure is a force in establishing MCLE in any jurisdiction. It is not, however, the only nor the sustaining force. MCLE owes its existence to a multitude of factors, a primary one being that surveys indicate that without MCLE, many lawyers would not participate in CLE activities. It is believed by the Colorado Board that CLE participation is both important and necessary to an attorney's continuing development.
The Colorado Board also strongly believes that MCLE has a positive effect on lawyer competence, even though it cannot be proven by either objective or scientific means. In every MCLE jurisdiction where lawyer's responses have been sought, surveys indicate that they believe that MCLE does improve their competence as well as that of their fellow attorneys. An educational habit seems to have been created by MCLE that encourages lawyers to add to their legal knowledge. This positive feeling about MCLE is echoed by the Young Lawyers Division of the American Bar Association which has proposed that MCLE be adopted in all jurisdictions. MCLE is increasingly being seen as a very positive program which improves lawyer competence.
An initial concern expressed by many lawyers was that the increased demand for courses under MCLE would far exceed the supply available.(fn8) This was also a concern of the Colorado Supreme Court upon implementation of MCLE. The court charged the Colorado Board with making educational activities available throughout Colorado so that lawyers would have an ample number of courses from which to choose.(fn9)
This initial concern was seemingly well founded, for in 1974 (before the advent of MCLE) there were few sponsors and CLE programs available, according to the most reliable source of such information, the CLE Register.(fn10) The fact that few courses were advertised in the Register, although not an entirely accurate reflection of how many courses were available, did demonstrate that CLE was then in an infancy stage.(fn11)
Proponents attempted to use this to their benefit as they argued that increased demand for courses would not only stimulate growth of CLE, but also make it more economical to have those activities in geographical areas heretofore shunned.(fn12) As early as 1976 (the first year MCLE was in effect in any state), even an outspoken critic of MCLE acknowledged that the number of CLE courses, due to the stimulus of MCLE, was increasing.(fn13) The fact that MCLE has stimulated CLE program growth is demonstrable in every state that has adopted the requirement.(fn14)
MCLE has also improved accessibility to CLE programming. In Idaho, the claim is made that MCLE has greatly increased CLE programs in rural areas.(fn15) Iowa credits MCLE for local bar associations providing more programs where, prior to implementation of the requirement, gatherings were more social in nature. Further, Iowa reports there are now more out-of-state sponsors presenting programs than there were prior to the adoption of the requirement.(fn16)
In Colorado, this trend is also evident. Outlying areas are now better served due to program sponsors meeting the demand created by MCLE. The advent of video replays and the Colorado Board's accreditation of such presentations has had much to do with this positive development."(fn17)
The consensus seems to be that because CLE providers have experienced an increase in demand for programs under a mandatory system, they have responded with more and varied programming. This result is paralleled in other professions such as optometry, nursing home administration, accounting, pharmacy, veterinary science and medicine.
Providers of continuing professional education have experienced increased demand for their programs, along with increased competition.... New programs and learning formats are being...
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