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, 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. I extend my thanks to Jeffrey Shulman, my Legal Practice colleagues, and 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 Pushes Mandatory Pro Bono, NAT’L L.J., May 23, 2016, at 17. 4. See Tom Lininger, Deregulating Public Interest 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 Pro Bono Requirement for Faculty 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, From Park Place 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)). 550 LOUISIANA LAW REVIEW [Vol. 78 I. STATUS QUO: MANDATORY CONTINUING LEGAL EDUCATION In the 1960s and 1970s, the organized bar promoted mandatory CLE as an answer to the concern that the rising number of new attorneys had led to a decrease in the quality of lawyering, a sentiment famously expressed by Chief Justice Warren Burger in his comments concerning the “inadequacies” of courtroom counsel. 7 Mandatory CLE remains firmly entrenched in the legal profession, bringing a substantial windfall for the institutional interests that profit from the system but little, if any, demonstrable public benefit. A. Rationale, Rules, and Numbers The primary rationale for mandatory CLE hinges on the alleged value of these programs in helping to ensure attorney competence. 8 To be sure, attorneys reap other benefits from CLE classes, such as opportunities for intellectual growth and professional advancement, but attorneys can make individual decisions as to whether personal benefits of this sort are worth the time and expense involved. 9 These personal benefits do not justify a mandatory scheme. 7. See Warren E. Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 42 FORDHAM L. REV. 227, 238 (1973); see also Cheri A. Harris, MCLE: The Perils, Pitfalls, and Promise of Regulation, 40 VAL. U. L. REV. 359, 361 (2006); Deborah L. Rhode & Lucy Buford Ricca, Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?, 22 PROF. LAW. 2, 3 (2014). 8. “Competence” in this context broadly refers to the “legal knowledge, skill, thoroughness and preparation reasonably necessary” for client representation. MODEL RULES r. 1.1. All American jurisdictions require “competence” as a matter of professional conduct, and most put the “competence” rule before all others. Links to each...