CLE in Maryland and the Future of MICPEL

~Where are we going? Where have we been?~

By Brent Burry

When you "Google" the term "continuing legal education" today you get about 9,750,000 results within 0.09 seconds. The sheer number of Google search results and the top ten Google "CLE hits" on January 19, 2007, illustrate the opportunities and challenges that face MICPEL and its founding partners – the MSBA, the University of Baltimore School of Law and the University of Maryland School of Law – as MICPEL strives to continue its 30-year tradition of "producing the highest quality CLE resources for practicing lawyers in Maryland through publications, programs and other delivery systems that utilize available technologies, in a fiscally responsible manner."

In February 2007, CLE takes many forms in Maryland and around the country, from very low-tech to cutting-edge high-tech, including traditional, in-person seminars of two- to six-hour duration; shorter quasi-educational social/networking events; section and committee meetings with some educational content; teleconferences; live seminars presented via satellite or closed-circuit television; online Webinars or distance learning courses utilizing "synchronous" (live, interactive) formats or "asynchronous" (non-interactive, previously produced/packaged) formats; e-mail listserves; threaded discussion groups; online legal research services that provide free or low-cost access to primary case law and statutory law; mentoring programs; professionalism courses for new admittees; even blogs and podcasts. And don't forget the proliferation of paper and electronic versions of legal treatises, manuals; handbooks, written course materials, practice forms and document assembly software for lawyers; CDs, DVDs; videocassettes and audiocassettes.

CLE resources have never been more accessible to lawyers. There is intense competition among CLE providers, especially national and regional for-profit providers, to sell their content everywhere and anywhere lawyers work and live. A continuing emphasis by bar associations and their not-for-profit affiliated CLE entities to provide high-quality, economical CLE resources to their constituents has kept CLE prices at a very affordable level. Yet CLE in Maryland seems to remain curiously – and stubbornly – outside the mainstream of the collective consciousness of Maryland's legal community and "un-embraced" as a vehicle for improving the profession and instilling a higher level of public trust and confidence in Maryland's legal system.

The main reason that CLE is relegated to a position of lesser importance in the minds (and busy professional lives) of Maryland lawyers is that Maryland remains out of step with the majority of states which have institutionalized CLE as a required component of a lawyer's continuing obligation to maintain her/his competency and professionalism. Maryland is in a shrinking minority of states without an annual MCLE requirement for its lawyers.

As a result, MICPEL has lagged behind many of its bar-affiliated counterparts in other states and most of its commercial CLE competitors in making its CLE products and services available online. Happily, MSBA President Ed Gilliss has made it a priority during his term to bring MICPEL and the MSBA up-to-speed online in big way. A Gilliss-appointed Technology Task Force, chaired by former MICPEL President and Towson IT lawyer Mike Oliver, has been appointed to identify the best technology solutions and to help find the financial resources to implement them, so that MICPEL and MSBA resources can be much more accessible to lawyers all over the state. The Technology Task Force will report to the MSBA's Board of Governors this month and will recommend what e-learning and interactive communication solutions should be pursued by MICPEL and the MSBA's Sections and Committees.

The national movement to MCLE took root in 1975, when Minnesota became the first state to institute MCLE. By 1985, 17 more states had adopted MCLE. In 1990, a total of 35 states required MCLE (Michigan adopted MCLE in 1990, but rescinded it in 1994). Among the eight additional states that have implemented MCLE since 1990 are the two states with the largest number of lawyers: California, with 140,000 lawyers as of July 2006 (which adopted MCLE in 1992) and New York, with 144,599 lawyers as of July 2006 (which adopted MCLE in 1998). The most recent addition to the list of MCLE states is Illinois, whose 80,000 lawyers came under an MCLE requirement beginning in July 2006.

Forty-three states now require active practitioners to obtain a minimum number of hours of CLE instruction annually. The seven non-MCLE states are Connecticut, Maryland, Massachusetts, Michigan, Nebraska, New Jersey and South Dakota. Note that Maryland is counted as a non-MCLE state despite the fact that, since 1992, all new admittees to the Maryland Bar have been required to attend the MSBA's half-day "Professionalism Course". Paradoxically, Hawaii has been counted as an MCLE state since July 2001, even though attendance at its Professionalism Course is the only mandated requirement, while New Jersey is counted as a non-MCLE state although it requires all of its new admittees to complete a 46-hour skills and methods course during their first three years of practice.

Interestingly, Alaska, which is listed among the MCLE states, adopted a self-described VCLE requirement in September 1999 under which attorneys who voluntarily obtain at least 12 hours of CLE credit each year (including one hour of ethics) are entitled to a $20 discount on their annual bar dues for the mandatory bar, inclusion in a published list of compliant attorneys and participation in the bar association's lawyer referral service. The Alaska Bar Association and the Alaska Supreme Court issued a proposed MCLE rule in June 2006 that would change the existing voluntary system to a mandatory one. Comments on the proposal new rule were invited from bar members through mid-August 2006. Action on the proposed rule is pending.

According to the Alaska Bar Association, in 2005, 42 percent of the state's 2,346 active attorneys participated in the voluntary system of CLE. In comparison, during FY 2005/2006 (July 1, 2005 – June 30, 2006) MICPEL's program registration records show that approximately 3,500 lawyers attended MICPEL's 73 live seminars. Another 650 lawyers, judges, law professors and related professionals participated in a MICPEL program or publication as volunteer teachers, authors, editors or planners. What percentage of Maryland lawyers does this group constitute? Approximately 16 percent of the 22,000 active, in-state attorneys who paid their annual assessment to the Client Protection Fund of the Bar of Maryland. (Of course a statistically significant margin of error should be considered in evaluating this estimate. A number of county, local and specialty bar associations in Maryland have CLE programs and regularly conduct CLE activities that are supported by their members. Several commercial, out-of-state, for-profit CLE providers sponsor CLE programs in Maryland which attract some Maryland lawyers. MICPEL's quoted registration figures include an undetermined number of individual registrants who attended multiple programs.)

In 1995, the Court of Appeals of Maryland and its Rules Committee shelved an MSBA proposal to establish a mandatory requirement that Maryland attorneys obtain a minimum number of hours of regular CLE every year. In 2001, the Court again declined to adopt a proposal to mandate CLE participation by Maryland attorneys, this time in the form of the adaptation and expansion of the MSBA's Professionalism Course for New Admittees to a similar course of experienced lawyers. However, in 2001, the Court extended – for an additional 10 years – the CLE requirement imposed on new Maryland lawyers to attend the Professionalism Course. That same year, the Court also required Maryland judges to attend two days of JCLE courses every year. The composition of the Court has changed since 1995 and it will change again in the near future. Would the Court reach a different result if it were presented with a new proposal for VCLE, MCLE or the expansion of the Professionalism Course to cover all Maryland lawyers?

Brent Burry is Executive Director of the Maryland Instituted for Continuing Professional Education of Lawyers (MICPEL).