“It will be too expensive.” “I don’t need a rule making it mandatory; I already do it.” “You can’t force someone to learn; they will attend classes and read the newspaper.” “There is no empirical evidence that it improves lawyer skills, competence, knowledge or behavior.” “I don’t like to be told what to do.”
All the above protestations—and more—were trumpeted loudly and incessantly by opponents of mandatory (or minimum) continuing legal education for the 12 years supporters of the concept fought to end Connecticut’s status as one of only four states without MCLE. And a mighty struggle it was, with one task force failing to convince the Rules Committee to act and another unable to even reach consensus on a recommendation to the Rules Committee. But persistence was finally rewarded when the Superior Court Rules Committee adopted MCLE in June 2016 to be effective Jan. 1, 2017, and its implementation in the intervening year has demonstrated unequivocally that the fear of—and opposition to—MCLE was completely unwarranted.
The Connecticut Rule is similar to most other state rules in its requirement for 12 hours of CLE per year, two hours of which must be in professionalism or ethics, but alignment with other jurisdictions largely ends there. Connecticut has taken a self-regulatory approach. For example, there are no certified providers of CLE and no pre-approved courses; the individual lawyer decides whether the course she wants to take satisfies the content requirements of “significant intellectual or practical content designed to increase or maintain the attorney’s professional competence and skills as a lawyer.” Moreover, attorneys are permitted to satisfy some or all of the required hours of CLE by self-study if desired, and credits may also be earned by teaching legal seminars and courses or by publishing articles in legal publications. While failure to comply with the rule will constitute misconduct under the Rules of Professional Conduct, a non-compliant lawyer will be given 60 days to comply before being subject to discipline. “MCLE Lite,” some have called it. But by all accounts it is working—and working well.
The Commission on Minimum Continuing Legal Education, which was created to implement the rule, consists of four judges of the Superior Court and four lawyers and enjoys the invaluable assistance of the Counsel to the Statewide Grievance Committee and his staff. Initially it was flooded with questions and petitions for exemptions, as might be expected, but as issues were resolved and lawyers become familiar with the new regime, the commission found it had time—and now the experience—to make improvements to the MCLE Rule, which were presented to the Rules Committee in January.
Because the commission members serve without compensation, and because so much free CLE has become available to lawyers—from bar associations and online—Connecticut’s MCLE Rule has resulted in no cost to the Judicial Branch and only minimal expense to the bar. And, either out of conversion or resignation, the protesters have gone silent.
As indicated, self-regulation is the hallmark of Connecticut MCLE, and that is evident also in the requirement that each lawyer certify on his or her annual registration form whether he or she has complied with the MCLE Rule during the preceding year and, if not, whether an exemption can be claimed (e.g., serving in active duty in the armed forces or earning less than $1,000 from legal services). Early data available from the ongoing 2018 registrations reveal that the vast majority of the 39,000 lawyers in the state are certifying compliance.
There may never be a way to quantify the benefit of MCLE to the profession, but can it be reasonably argued that the bar is not the better for finally formalizing the obligation it has to the courts and the public it serves to maintain and enhance the skills, competence and ethics of its members? Better late than never.