Next month, when lawyers get the letter directing them to report their pro bono activities for the past year, they’ll find a little something extra in the envelope.
Included in the mailing will be a flier from the Maryland Judiciary, asking the lawyers to fill out an online survey about the amount and type of continuing legal education courses they take each year.
The Court of Appeals will review the survey result as part of its consideration of a controversial proposal to require the attorneys to take 10 hours of CLE courses annually.
The proposal, as introduced last February, was to take effect on Jan. 1, provided the Court of Appeals approved it by the end of this year — an unofficial deadline that will not be met.
Judge Lynne A. Battaglia attributed the delay to the need for the survey as well as her continuing efforts to explain the benefits of mandatory CLE to county bar associations and other lawyer groups. Battaglia chairs the judiciary’s Professionalism Commission, which proposed the CLE requirement.
“I have been all over the state talking to people about it,” she said.
Reactions have been mixed.
“It wasn’t always pleasant,” Battaglia said, noting the many attorneys opposed to mandatory CLE. At the same time, however, “it was heartening to hear people talk about the importance of CLE.”
The results of the survey could go a long way toward determining if continuing legal education becomes required of Maryland attorneys, said Thomas D. Murphy, president of the Maryland State Bar Association.
“If Maryland lawyers are not engaging in CLE in sufficient numbers … then I anticipate the court will impose the requirement of mandatory CLE,” said Murphy, of Murphy & Mood PC in Rockville.
After the survey results are in, the Court of Appeals expects to hold public hearings on the mandatory CLE proposal, Battaglia said. The seven-member court will vote later this spring on whether to mandate CLE, she predicted.
Battaglia, an advocate of mandatory CLE, said she does not know what the survey will reveal — or how her colleagues will vote.
“I couldn’t tell you as I’m sitting here, and no one can, if everyone is taking CLE or not,” Battaglia said.
“We [on the court] don’t discuss where we are prior to the times we have hearings,” Battaglia said. “If there is opposition, that is their personal thing. I have no idea.”
But she is certain the survey will help provide the Court of Appeals with “as much feedback as we possibly can as to what is happening with regard to CLE in this state. The more knowledge you have, the better.”
The judiciary’s survey, sponsored by the Professionalism Commission and the Maryland State Bar Association, will ask lawyers how many CLE hours they have amassed, the courses they took, their preferences for how to take the classes and suggestions on how to enhance CLE programs.
Earlier mandatory CLE proposals have failed before reaching the Court of Appeals, and the dispute over the current proposal has become heated — even for a profession well accustomed to vigorous disagreements.
Supporters say the rule is necessary to ensure that lawyers stay abreast of the latest developments in the law as well as in the technology that is becoming a staple of the profession, such as electronic filing and discovery.
“You have to go from the premise that CLE is an integral part of the development of attorneys,” Battaglia said.
“The more education we have beyond just the door of the law school the better we are not just in terms of our competence but in our performance as attorneys,” she added. “I don’t see any downside to being educated.”
Supporters point out that CLE is mandatory in all but six jurisdictions: Maryland, Connecticut, Massachusetts, Michigan, South Dakota and Washington, D.C., according to the American Bar Association.
But opponents, including 70 percent of MSBA members who responded to the organization’s own poll last year, say the competency requirements of the Maryland Rules of Professional Conduct already compel attorneys to keep up with the latest advances in the law.
“Any attorney worth his salt” takes CLE on a regular basis without a mandate, attorney M. Albert Figinski said.
“Continuing education is essential,” added Figinski, of the Law Offices of Peter G. Angelos PC. “What I vigorously oppose is mandated continuing legal education.”
Attorney Rob Ross Hendrickson, another opponent, called mandatory CLE unnecessary because the law is a self-regulating profession in which attorneys who do not voluntarily keep up with the latest rulings and trends face potential liability or professional sanction.
“It is a self-policing sort of system with the ethical obligations and the grievance procedures,” said Hendrickson, of Boyd, Benson & Hendrickson in Baltimore. “If you take on something you are not qualified to perform, that’s what malpractice is for, that’s what the Attorney Grievance Commission is for.”
Time and cost
Mandatory CLE also would be expensive for attorneys, from solo practitioners to partners at large firms, added Hendrickson, who chairs the MSBA’s Senior Lawyers Section. These expenses can run into the thousands of dollars for each lawyer, based on the cost of taking 10 hours of CLE credits and the potential revenue they lose from clients they cannot serve while attending classes, he said.
“Do you undertake such a massive financial and time allocation based on somebody’s idea of improvement?” Hendrickson said. “I have lingering doubts as to the positive effects [of mandatory CLE], particularly when one considers the cost, the economic impact.”
But Melvin Hirshman, who spent nearly 30 years enforcing the legal profession’s conduct rules as Bar Counsel to the Attorney Grievance Commission, said he supports mandatory CLE as a way to promote attorneys’ ethics and competence
“The object [of CLE] is to keep lawyers competent,” said Hirshman, who retired June 30. “Our object [as attorneys] is to competently represent someone who comes to us as a client.”
Hirshman, however, said he has not seen any data showing that mandatory CLE reduces the number of legal-malpractice claims or disciplinary proceedings against lawyers. He also agreed with Hendrickson that the cost of CLE classes can be especially burdensome for attorneys just starting out and solo practitioners.
“Anything that lawyers have to pay extra for is going to hurt the little guy,” Hirshman said.
But the benefits outweigh the costs, he added.
“It’s an opportunity for lawyers … to keep up with the latest trends,” he said of CLE. “It makes them aware of issues not in their practice.”
Attorney Paul Mark Sandler, who chaired the subcommittee that drafted the proposal, said technological advances and the increasing complexity of laws make the need for continuing legal education so compelling as to require a mandate.
He cited the expansion of laws governing immigration, health insurance and taxes, as well as technological changes, such as e-discovery and e-filing.
“The changes are vast; the changes are imposing on a lawyer,” said Sandler, a partner at Shapiro Sher Guinot & Sandler PA in Baltimore. “The practice of law is much more intense today.”
Mandatory CLE under the proposed rule
With certain exceptions, the proposed CLE requirement would apply to every licensed Maryland attorney who is regularly engaged in the practice of law in the state for any part of the year.
Of the 10 hours of CLE the rule requires annually, at least two would have to be devoted to the issue of professionalism, including ethics and civility.
Up to five hours of CLE can be obtained through self-study, such as correspondence courses or classes involving audio video recordings, Webinars or other online presentations.
Lawyers may also earn credit by attending in-house seminars, courses presented by law firms, corporate legal departments or governmental agencies.
In addition, attorneys may receive CLE credit for nonpaid scholarly writing and publication; nonpaid teaching of a CLE course; teaching a law course at a law school, university, college or community college; or attending a professional association meeting at which substantive law or legal professionalism is discussed.
Federal and state judges, magistrate judges, administrative law judges and masters, as well as their law clerks, would be exempt from the rule, as would attorneys on active U.S. military duty, those who hold elected state or federal office and do not practice law, and those who have 10 hours of CLE credits from another state that year.
Failure to comply with the CLE requirement could lead to suspension by the Court of Appeals.
Attorneys who exceed the 10-hour minimum for one year may carry over the excess hours the following year. However, each year must include two hours of professionalism coursework.
For newly admitted Maryland attorneys, the CLE requirement would not go into effect until Jan. 1 of the year following their admittance.