Maryland Supreme Court narrowly votes to continue deliberations on CLE for attorneys

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By a single-vote margin, the Maryland Supreme Court has decided to continue conversations regarding the adoption of mandatory continuing legal education for Maryland attorneys.

The 4-3 vote reached by the justices on Wednesday afternoon after an hour-long virtual meeting reflected the split nature of opinions on mandatory CLE held by attorneys and Maryland legal organizations who previously submitted written and verbal comments on the matter.

Chief Justice Matthew Fader and Justices Michele D. Hotten, Brynja M. Booth and Angela M. Eaves voted in favor of continuing conversations on the proposed implementation of mandatory CLE.

Justices Shirley M. Watts, Steven B. Gould and Jonathan Biran voted to maintain the status quo, with Watts and Biran noting their preference of a voluntary CLE program.

The vote is not approval of mandatory CLE, but a move to continue the review process. A timetable for a final vote was not released Wednesday.

“Part of our responsibility as the regulatory authority of the legal profession of the state of Maryland is ensuring that attorneys in the state are qualified and competent to represent clients in the best way,” Fader said during the meeting. “To be a fully competent and qualified attorney in the state, lawyers, like other professionals, need to continuously educate themselves and stay educated.”

Fader said attorneys need to be aware of changes in the law, and valuable opportunities exist for all types of practitioners to avoid committing malpractice and to ensure staying up to date on relevant practice matters for the benefit of clients.

Eaves said the value of a law license means giving back.

“I think we are having to consider what it does with respect to competency largely,” Eaves said of not taking CLE courses. “I think that this requires that we take our responsibility as the court responsible for ensuring that lawyers are all competent … and consider the various ways that we can make that happen.”

Justices who voted to maintain the state’s status quo highlighted concerns of cost, lack of empirical evidence of the benefit of CLE and the burden placed on attorneys if CLE is mandated.

Watts said she thinks it’s unlikely that it is possible to eliminate the cost burden of a mandatory CLE program.

“I think it’s going to fall inequitably on members of the bar who are least able to afford it and bear it at this time,” Watts said. “I’m hesitant to impose across the board a mandatory requirement that’s going to result in cost for solo practitioners, small firms, increased burdens on time and that does not have a demonstrable benefit other than the intangibles of perhaps raising collegiality.”

Gould said the evidence must be compelling so that the marginal benefits to mandatory CLE adoption exceed the costs associated with implementation.

“The perceived benefits of mandatory CLE that were identified… are speculative and there has been no empirical evidence that outcomes have improved, that there have been fewer disciplinary actions,” Gould said. “I think if we’re going to change course, we should be able to articulate a basis for our decision that’s grounded in evidence, and we don’t have it.”

A work group commissioned by the state’s highest court issued a report last year recommending that Maryland attorneys be required to complete a minimum of 12 hours of CLE each year.

The Maryland Supreme Court solicited comments for a two-month period to determine whether CLE could become mandatory for the state’s attorneys. Though the proposed move to mandatory CLE is backed by many of Maryland’s legal organizations, some solo practitioners and small firms have raised opposition to a required CLE.

In a virtual forum held in December by the state’s highest court, some of those who opposed mandatory CLE took issue with the proposed one-hour requirement dedicated to diversity, equity and inclusion education.

According to the work group’s recommendation, attorneys should complete at least one-hour each of CLE concerning three categories: 1) ethics and professional responsibility; 2) diversity, equity, and inclusion; and 3) mental health and substance abuse. These courses would be included as part of the required minimum 12 hours.

According to the American Bar Association, 46 other jurisdictions currently require some form of mandatory CLE, including Maryland’s neighbors — New Jersey, Pennsylvania, Virginia and West Virginia.