Should Michigan mandate continuing education?

By Tom Gantert

Legal News

Jackson Attorney Philip Navarre estimates he spends 120 hours a year keeping up on his profession. He does it on his own time and at his own expense.

"The law is a jealous mistress," Navarre said. "You have got to spend time with it."

But Navarre doesn't think Michigan should mandate continuing education for attorneys, as 45 other states do.

Continuing education for lawyers is making national news as California is starting to check up on whether its lawyers meet the mandate and are disciplining those who meet the requirements.

According to the California Bar Journal, the bar audited 635 lawyers at random last year--or 1 percent of the attorneys whose continuing education requirements were due. This year the California bar plans to audit a 5-percent sample, or about 4,000 lawyers. California attorneys are required to complete a total of 25 hours of approved credit every three years.

Julie Fershtman, president of the State Bar of Michigan, said that mandatory continuing education has occasionally been a topic of discussion. Fershtman said several years ago the Michigan Supreme Court initiated a pilot project requiring a form of mandatory continuing education for young lawyers.

"That project was short-lived," Fershtman said.

Fershtman said a 2011 state bar member survey found that Michigan lawyers participate in and put a high value on continuing legal education but are divided on the question on whether it should be mandatory.

"A majority favors the status quo," Fershtman said. "I should also note that despite the consensus that good lawyering requires regular updating of knowledge, no evidence exists that setting up a mandatory system of continuing legal education improves the overall quality of lawyering in a state. Notably, no state requires that lawyers receive a passing score on a test to satisfy their CLE requirements; attendance alone is what is measured. Given the cost of setting up and administering a mandatory CLE system, the State Bar's thinking to date is that we need more evidence of the pay-off of a mandatory requirement than we've seen thus far."

Several lawyers said Michigan attorneys have many options available for continuing education with technology improving as well as access to The Institute of Continuing Legal Education (ICLE).

ICLE was created in 1959 at the request of the Board of Commissioners of the State Bar of Michigan. ICLE provides seminars and publications and has online tools that give lawyers the ability to learn trends without having to go to Ann Arbor, where the Institute is located.

"I'm involved in that," Navarre said. "I participate in a lot of the ongoing continuing legal education through ICLE. It's not just attending the seminar. It's then going through the material. You always take away something whenever you go. I think that stuff is just invaluable to have because it enhances the level of service you can provide to your clients. It is important to know what the state of the law is and what some of the trends are."

Navarre said one of the reasons he is opposed to mandatory continuing education is that his profession is already among the most regulated in the state.

Ann Arbor Attorney Karen Valvo said a state mandate on continuing education in Michigan "would be helpful." She said most Michigan attorneys are conscientiousness about staying up to date with the changes in the law.

But Valvo said that her experiences as a former chair of the attorney discipline board led her to think a mandate would help those attorneys "who really need to stay attuned and are required to do so in order to keep their licenses."

Before saying the state should adopt a mandate for continuing education, she'd want to see the specifics. Valvo said she would want something in the mandate that wasn't so expensive or time consuming that it became a burden.

"The devil is always in the details," she said.

Requirements vary from state-to-state. For example, attorneys in Ohio must complete 24 credits in a two-year period. In Illinois, it is 30 credits in a two-year period.

Many states also specify just what topics the mandated continuing education has to include.

For example, in Virginia an attorney must complete 12 credit hours with at least two hours in the area of legal ethics and professionalism. Virginia attorneys also must have a minimum of four credit hours of live interactive programming while no more than eight hours may be earned in pre-recorded courses.

New Jersey requires that half of the 24 credits it mandates every two years must be live or interactive and at least four credits must be in ethics/professionalism.

In Michigan, the debate over continuing education has been going on for decades.

In 2002, Cynthia McLoughlin wrote about continuing education for lawyers in The Michigan Society for Psychoanalytic Psychology newsletter.

McLoughlin ended her summary by quoting then State Bar of Michigan President John Berry: "If you have a mandate, there has to be a penalty for failing to comply. What's the penalty going to be and how is it going to be determined whether there's been compliance? There should be a pretty careful investigation of the costs of administration in advance because those costs are frequently underestimated."

Published: Wed, Aug 1, 2012