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
 
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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 Professions 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 attendees 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 applicantseasy
marks with little ability to protest.4 This effort, however, sidesteps the harder
1. James C. Mitchell, MCLEThe Jokes On Us, 36 ARIZ. ATTY, 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 PROFL CONDUCT r. 6.1 & cmt. 2 (AM. BAR ASSN
2016) [hereinafter MODEL RULES].
3. See Tony Mauro, Sotomayor P ushes Mandatory P ro Bono, NATL L.J.,
May 23, 2016, at 17.
4. See Tom Lininger, Deregulating Public Inter est Law, 88 TULANE L. REV.
727, 73839 (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 attorneys 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 quoto
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 CLEall 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 nations 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)).

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