Making CLE Voluntary and Pro Bono Mandatory: A Law Faculty Test Case

• Author: Rima Sirota
• Position: Professor of Legal Research & Writing, Georgetown University Law Center. I also serve as Ethics Counsel to an organization providing pro bono legal services and as a volunteer attorney for domestic violence survivors.
• Pages: 547-595

Making CLE Voluntary and Pro Bono Mandatory: A

Law Faculty Test Case

Rima Sirota*

TABLE OF CONTENTS

Introduction .................................................................................. 548

I. Status Quo: Mandatory Continuing Legal Education .................. 550

A. Rationale, Rules, and Numbers.............................................. 550

B. Mandatory CLE Does Not Improve Attorney

Competence ........................................................................... 553

1. No Data Despite Opportunity and Incentive ................... 554

a. Malpractice Insurance ............................................... 558

b. Disciplinary Action ................................................... 559

2. Mandatory CLE Structure ............................................... 560

II. Status Quo: Voluntary Pro Bono .................................................. 564

A. The Unmet Need for Legal Services...................................... 564

B. The Profession’s Insufficient Response ................................. 567

1. The Rules ........................................................................ 567

2. The Results ...................................................................... 568

C. A Mandatory Pro Bono Obligation ........................................ 572

1. Constitutionality .............................................................. 574

2. Misdirected Resources .................................................... 575

3. Second-Rate Representation ........................................... 576

4. Current Volunteers .......................................................... 576

5. Insufficient Response ...................................................... 577

III. Rethinking the Status Quo ............................................................ 578

A. Counting Pro Bono Hours Toward CLE Requirements ........ 578

B. A Full Switch Is Premature .................................................... 579

Copyright 2017, by RIMA SIROTA.

* Professor of Legal Research & Writing, Geor getown University Law

Center. I also serve as Ethics Counsel to an organization providing pro bono legal

services and as a volunteer attorney for domestic violence survivors. I extend my

thanks to Jeffrey Shulman, my Legal Practice colleagues, a nd other members of

the Georgetown faculty for their thoughtful feedback; to Margot Benedict, Thanh

Nguyen, Jeremy McCabe, and the staff of the Georgetown Law Library Research

Service for their excellent research assistance; and to Georgetown University Law

Center for the support that made this Article possible.

548 LOUISIANA LAW REVIEW [Vol. 78

1. Political Impossibility ..................................................... 580

2. Dearth of Mandatory Pro Bono Experience .................... 581

C. Shifting Responsibility to Aspiring Attorneys ....................... 584

IV. Law Faculty: The Right Fit for a Mandatory Pro Bono

Test Case ...................................................................................... 587

Conclusion .................................................................................... 595

INTRODUCTION

The vast majority of attorneys in this country are required to complete 10

to 15 hours of continuing legal education (“CLE”) every year, an experience

well summarized by one attendee’s observation that “[k]nowledge is good,

but coerced seat time is wasteful [and] insulting.”1 The primary rationale

for mandatory CLE is to help ensure competent client representation, but

the mandatory system fails to achieve that goal. Instead, mandatory CLE

has become a self-perpetuating industry that earns hundreds of millions of

tuition dollars for course purveyors but demonstrates little, if any,

connection to better serving the public.

By contrast, almost no attorney is required to complete a single hour

of pro bono service. Although the American Bar Association (“ABA”)

recognizes the “critical” need for free legal services for “persons of limited

means,” attorneys simply are encouraged to volunteer their time.2 This

voluntary pro bono system has proven to be so woefully inadequate that

Justice Sonia Sotomayor recently declared her support for a “forced labor”

approach to attorneys’ pro bono responsibilities.3

Responding to this critical need, a current trend in the profession focuses

on requiring pro bono service from law students and bar applicants—easy

marks with little ability to protest.4 This effort, however, sidesteps the harder

1. James C. Mitchell, MCLE—The Joke’s On Us, 36 ARIZ. ATT’Y, Aug.–

Sept. 1999, at 27. Similar sentiments abound in the literature. See, e.g., Paul-Noel

Chretien, The Bar ’s Back-to-School Scam, WALL ST. J., Jan. 17, 1996, at A15

(describing bar member opposition to mandatory CLE in the District of

Columbia); Walter C. Davison, David C. Farmer & Elizabeth A. Kane, Taking the

“M” out of MCLE, HAW. B.J., Aug. 2008, at 9 (describing opposition in Hawaii).

2. See MODEL RULES OF PROF’L CONDUCT r. 6.1 & cmt. 2 (AM. BAR ASS’N

2016) [hereinafter MODEL RULES].

3. See Tony Mauro, Sotomayor P ushes Mandatory P ro Bono, NAT’L L.J.,

May 23, 2016, at 17.

4. See Tom Lininger, Deregulating Public Inter est Law, 88 TULANE L. REV.

727, 738–39 (2014) (describing “shifted” focus of pro bono reform efforts to law

students and bar applicants).

2017] MAKING CLE VOLUNTARY AND PRO BONO MANDATORY 549

question of mandatory pro bono for licensed attorneys, including the law

professors who may be an aspiring attorney’s first professional role models.

More than a decade ago, Dean Erwin Chemerinsky argued in favor of

mandatory pro bono service for law faculty, hoping to “at least induce

debate and force examination of how to better engage law professors in

using their talents to help those who need it.”5 That debate has yet to

materialize. Law professors have at least as much of an obligation as other

attorneys to provide pro bono service, but their resistance to doing so has

resulted in rates of participation that Professor Deborah Rhode has

described as “shameful.”6

This Article argues that the time is ripe to upend the status quo—to

eliminate mandatory CLE and to explore replacing mandatory CLE hours

with required pro bono service hours. Part I documents the enormous reach

and substantial cost of mandatory CLE—all without any evidence of

efficacy. Part II establishes that regulations protecting the legal profession

both substantially contribute to the vast need for free legal representation

and justify a pro bono requirement for attorneys. Part III explores obstacles

to eliminating mandatory CLE and requiring pro bono, including political

opposition and the absence of mandatory pro bono models. Part IV

responds to this problem with a proposal: encouraging law faculties to

impose pro bono requirements on themselves with the incentive of

eliminating their mandatory CLE obligations. This faculty test case model

offers enormous potential benefits for the indigent clients who would be

served, the law students who would find role models for a lifetime of

service, the professors whose teaching and scholarship would be enriched,

and the profession, which would gain much-needed experience with

various approaches to mandatory pro bono.

5. Erwin Chemerinsky, A P ro Bono Requirement for Fa culty Members , 37

LOY. L.A. L. REV. 1235, 1236 (2004). Chemerinsky, recently named Dean of

Berkeley Law, is “widely considered to be a giant in legal education.” Austin

Weinstein, Erwin Chemerinsky Named Berkeley Law Dean, DAILY CALIFORNIAN

(May 17, 2017), http://www.dailycal.org/2017/05/17/erwin-chemerinsky-named-

berkeley-law-dean/ [https://perma.cc/3S2K-76MJ].

6. Deborah L. Rhode, Legal Ethics in Legal Education, 16 CLINICAL L. REV.

43, 54 (2009). Rhode, a Stanford Law School professor, has been described as

“the nation’s foremost expert on lawyers’ ethical duty to perform pro bono

service.” Tom Lininger, Fr om Par k Pla ce to Community Chest: Rethinking

Lawyers’ Monopoly, 101 NW. U. L. REV. 1343, 1343 (2007) (reviewing DEBORAH

L. RHODE, PRO BONO IN PRINCIPLE AND IN PRACTICE: PUBLIC SERVICE AND THE

PROFESSIONS (2005)).