The chair of a new task force that is examining whether to bring mandatory legal education to the state ended his first meeting by handing out a homework assignment. “I want both sides of the argument to come in with some ideas that might allow us to bridge that gap,” Superior Court Judge Elliot N. Solomon said.
Connecticut remains one of five states without mandatory, or minimum as it is now called, continuing legal education, and members of the state bar seem to be deeply divided on the issue. Solomon and 11 others were appointed by Chief Justice Chase Rogers to serve on the task force whose creation was suggested by the Superior Court Rules Committee.
The mission of the task force, which met in early October, is to try to determine what the costs and benefits of a statewide MCLE program would be, to seek ways to break the current impasse and then to go to the Rules Committee with recommendations.
It won’t be easy. “Among the 11 people who were at that meeting, it broke down to six [for] and five [against],” Solomon said.
The task force is comprised of 10 lawyers from various practice groups and levels of experience. Solomon and Superior Court Judge Barbara Bellis represent the bench. Other task force members declined to be interviewed, saying Solomon spoke for the group.
Earlier this year, the Rules Committee tabled the latest of several proposals for MCLE brought by the Connecticut Bar Association. The decision to delay action was based on concerns by opponents that the cost of MCLE would be too onerous for young lawyers and those in small firms.
Those concerns are still being raised, but Solomon isn’t focusing on them. He wants to hear from other task force members about their own specific concerns and possible resolutions. He wants more information from task force members who support MCLE about how it might improve legal competence, performance and client service. Then he wants to hear “the best arguments on why we shouldn’t have MCLE.”
Solomon is well aware of the possibility that the task force might not be able to reach a consensus. Part of the equation, he said is timing. “Look, the Hartford County Bar is one of the oldest bar associations in the country, and they had 200 years to raise the issue of mandatory CLE,. So raising it at a time when the economy is tough on everybody may not be the best time to raise it. I don’t know where it’s going, but we’re going to have do our research and report back to the Rules Committee.”
The CBA proposal would require lawyers to annually certify in writing that they had taken 36 hours of continuing legal education in the past three years. Some 21 of those hours would have to be in self-study, and the remainder from more formal classes and seminars. While the proposal was endorsed by the CBA’s House of Delegates, there was loud opposition by many over whether the cost of classes, which can run up to $900 each, would harm young lawyers and solo practitioners. Others said they wanted to see evidence that MCLE in other states has reduced the rates of attorney malpractice.
CBA President Barry Hawkins, who is not on the task force, said his understanding is that the group will try to develop factual information about MCLE. “One could always argue about policy, but one should not argue over the facts,” he said. “Those who have supported MCLE have said it should be affordable and easily available.”
The facts include the actual cost of MCLE and the potnetial benefits to bar members, including possible reductions in the cost of legal malpractice insurance.
Another idea is to take a closer look at the New Jersey MCLE program. That state, which adopted MCLE two years ago, utilized a similar ad hoc committee, which prepared a detailed financial analysis on how the program would run. That committee, for instance, realized that administrative costs of overseeing the MCLE program would not be adequately covered by a planned assessment of $4 per lawyer. That led to the state bar association borrowing start up funds from the New Jersey judicial branch to get the program off the ground.
Some of the strongest opposition has come from smaller bar association groups, including the New Haven County Bar Association.
New NHCBA President Sung-Ho Hwang inherited the group’s long-standing opposition to MCLE. He said a recent survey of the group’s members mirrored earlier studies. “We polled our members and they are opposed by about 70 percent,” he said. While no one is opposed to learning more about his or her practice area, the cost of being required to take courses and of possibly paying a fee to support the program is the tipping point.
“I think the one question is whether or not there is going to be an additional tax or additional fee that all attorneys have to pay,” Hwang said. •