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Greetings from sunny Boca Raton, Florida! Today’s events: tennis, swimming, golf, and . . . continuing legal education. If those aren’t the first four activities you’d brag about on a postcard, consider that the Boca Raton Resort & Club was this winter’s host of the American Bar Association’s annual Forum on Communications Law. Media lawyers spent a few hours each morning at the big pink hotel discussing topics of interest to defenders of the First Amendment, then retired to the pool. It’s a tough job, but someone’s got to do it. We do it because our state bars say we have to. Continuing legal education is now mandatory in 40 states. While Boca is a pretty nice place to spend a few days, it doesn’t hurt that the forum is certified for CLE credit. This means our classroom hours serve double duty as education and legal certification. Although the former is certainly important, in the battle for CLE dollars it’s the latter that really matters. Given a choice between a stuffy conference room and a swimming pool, the reasonable lawyer will pick H2O over carbon dioxide. But do we really want lawyers choosing their edification based on degree days? Once upon a time, lawyers trained by apprenticing themselves to masters. They learned the skills they needed, and few were the worse for wear. But with formal education came formal licensing requirements, followed swiftly by examination, accreditation, and the abuse of the No. 2 pencil. Soon, a lawyer could not practice unless a state bar committee stamped its seal of approval on his shiny forehead like a ripe banana. The ostensible purpose for the various hoops we jumped through was the protection of the public. A degree from an accredited law school certified that a lawyer could think like one. A passing score on a bar exam indicated a proficiency in the basics. Admission to the bar certified an applicant’s “character and fitness.” In all this, the state bar committees were only looking out for the public’s best interest. Or were they? Consider the Boca forum. While this three-day retreat brings together more than 400 lawyers from the media bar, similar events in Kansas City, Mo. (sponsored by Media/Professional Insurance), Toronto (sponsored by the Media Law Resource Center), and Washington, D.C. (sponsored, in part, by the Newspaper Association of America) draw a much smaller crowd. The panels and conferences are of equally high quality (and involve many of the same presenters), but you can’t swim outdoors in Canada in early May. The ABA has also certified its conference for CLE credit in nearly every state, while those other conferences have not. No surprise, then, that lawyers flock to Boca. These days CLE is a multimillion-dollar business, which has led to the proliferation of CLE providers, and even an industry association. The Association for Continuing Legal Education represents over 200 providers of continuing legal education, all of whom are eager to provide services for a fee � and to provide attorneys with an excuse for another boondoggle. Costs can range from $69 for an online course through ALI�ABA to more than $500 for the Boca conference (not including airfare and $400 a night for the hotel). Mandatory CLE obligations have driven us directly into the arms of these providers, who have the know-how and human resources to handle the state certification requirements. (The parent of this publication, ALM, also provides CLE services.) While many of these groups are undoubtedly able and well meaning, their competence takes a backseat to the attractive location and ease of attending their events. Mandatory CLE is just part of a larger pattern of attorney regulation that is all about gilding the bar, not protecting the public. For example, in New York this summer the bar examiners will raise the passing score on the bar exam by five points, following the lead of Ohio, Minnesota and Florida, purportedly to improve the quality of lawyering. But does anyone really think that increasing the passing score will provide the public with smarter or more competent attorneys? Those five points represent less than one correct question on the multistate section of the exam (the MBE), in a test already ridiculous for trying to measure legal ability in multiple-choice format. What the MBE really tests is the ability of students to shell out several thousand dollars for a bar review course, where, over the duration of several months, they will be force-fed a steady diet of mnemonics designed to help them memorize legal rules in areas of law they barely knew existed, will rarely see in practice, and will forget one week after the exam is over. Indeed, few lawyers are called upon to answer questions in all the areas tested by the MBE, and fewer still would address a client’s problem without conducting any legal research (those who do may be subject to sanctions should their advice prove wrong). Moreover, because the answers to the MBE are based on the “majority rule,” many “correct” answers will not reflect the law in the state in which a lawyer plans to practice. In fact, few questions on the MBE have a correct answer; instead, test takers are told to choose the “most correct” or “least wrong” of four answers. This is like asking a doctor which drug will kill his patient the least. What the bar exam does not test are the skills that lawyers actually need in practice. These include legal research, the ability to conduct factual investigations, counseling and advising clients, communicating orally, negotiating, persuading and advocating � to say nothing of empathizing with one’s clients, doing pro bono work or representing underserved populations. It might be too much to ask any exam to test for some of these skills, but the bar exam � unlike, say, the LSAT, which does test for some skills needed to succeed in law school � tests for none of them. By increasing the passing score on the bar exam, the state bar examiners will provide the public with fewer minority attorneys (whose scores tend to be lower) and a greater percentage of attorneys whose corporate law firms can afford to pay for a bar review course and give them time off to study. In effect, the bar exam operates as a barrier to entry, set up by those with access to gold in an attempt to prevent fewer from mining it. Consider, as well, the rules regarding reciprocity. This year I was able to waive into the Connecticut bar because I was admitted to the bar in Washington, D.C. The state of Connecticut, however, will not extend the same privilege to lawyers from New York (and vice versa). Is there any rational reason to permit D.C. attorneys to practice in Connecticut while precluding New York attorneys from doing so, except as a punitive and economic measure against the state of New York? Indeed, Connecticut’s rules are quite specific in extending reciprocity only to those jurisdictions that extend reciprocity to Connecticut attorneys, which does not include New York. Both states’ bars wish to control the number of lawyers within their borders for the benefit of their own members’ pocketbooks. Economics, not public interest, rules the day. If the bar were truly serious about training attorneys to better serve the public, we would not offer up boondoggles disguised as education. We would not test attorneys on book knowledge and ignore their practical skills. We would not license attorneys for purely economic reasons in a hodgepodge state-by-state quilt. Instead, we would require meaningful apprenticeships, mandatory pro bono work, and hands-on examinations before we permitted a lawyer to hang out his shingle. There are too many interests vested in our current system � from the state bars to the large legal services providers, who are motivated by money and not by clients’ welfare. In the end, of course, it’s these clients who pay for the room by the pool in the form of higher rates and a misperception about the true value of a license. The rest of us know it’s worth its weight in sunscreen. Cameron Stracher is publisher of the New York Law School Law Review and special counsel to Media Professional Insurance. This article originally appeared in Recorder affiliate The American Lawyer, based in New York.

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