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A legal note from Marshal Willick concluding (for now) a series about Continuing Legal Education (“CLE”) of Lawyers in Nevada: how it got here, what just happened, and where it is likely to go in the future – including a startling admission from the folks running the program.

The entire scheme of CLE in Nevada just changed dramatically as part of the fallout from the disastrous policies adopted by the CLE Board and discussed in Legal Note Vol. 66. The future may be even weirder.

 

I. BACKGROUND, PURPOSE, AND COMMENTARY

In 1982, the Nevada Supreme Court adopted rules stating that “It is of primary importance to the state bar and to the public that attorneys continue their legal education throughout the period of their practice of law or judicial service.”

The system is mandatory, requiring attorneys to finance the system, and rendering their professional license subject to suspension or revocation for non-compliance. No known study or data went into that decision 36 years ago, which created the Nevada Board of Continuing Legal Education, distinct from – but intertwined with – the Nevada Bar Board of Governors (“BOG”).

The facial “purpose” of CLE is to enhance lawyer education. The underlying purpose is the benefit to the public of having lawyers available who are better educated so that legal services provided to the public will be of higher quality.

The “mission statement” of the CLE Board that was created is to ensure that Nevada lawyers “continue their education through a wide range of quality educational programs and to have and maintain the requisite knowledge and skills to fulfill their professional responsibilities.”

Many lawyers treat CLE as a nuisance “box-checking” exercise and expense; a number sit through CLE doing other work (or reading, or sleeping), others sign in and simply leave, never to return, and it is common knowledge that “a lawyer can send in the money for CLE on disk, and throw the disks in a desk drawer. CLE credit is given so long as the check clears.”

For example, see Legal Note Vol. 33, “Make Lawyer CLE Meaningful” (Jan. 2011); Vol. 36, “Judicial CLE” (Mar. 2011); Vol. 40, “Other Updates to Prior Notes” (Jun. 2011), and Vol. 54, “Putting Your Money Where Your Mouth Is: Cheap & Useful CLE” (Oct. 2012), all posted at https://www.willicklawgroup.com/newsletters/. Those notes stepped through the history of CLE in Nevada, detailing how it had devolved from the aspiration of promoting lawyer competence into the meaningless extraction of funds to fund the CLE bureaucracy, and how both the Bar and the CLE Board had ignored the obvious reforms that would make it more useful to the public.

Many Nevada lawyers have complained about the CLE “industry” for years, noting that it was already much too expensive, and that for many lawyers it was a totally hollow exercise which generated money for both the Bar and the CLE Board but had no discernable effect on actually improving lawyer competence.

The 2011 article detailed the huge sums involuntarily extracted from lawyers and being fed to the Bar, to the CLE Board, and to private companies, and protested that since all known studies showed no actual improvement to lawyer competence from mandatory CLE, what Nevada had created was a time-and-money-consuming bureaucracy that falsely portrayed itself as providing a service important to the public, but which actually did not make lawyers better or provide the public any useful information, and so did no actual good.

It suggested that if mandatory CLE was retained, it should be made meaningful by requiring testing to ensure those attending were at least present, and by publicly posting in each lawyer’s on-line Bar biography what CLE that lawyer has attended to inform members of the public “shopping” for lawyers.

“Informing the public” is the same reason that the Bar – eventually – agreed to post on its web site the lists of certified specialists in each specialization subject area; the idea is to provide to members of the public looking to hire an attorney information that is relevant to the decision to hire a particular attorney. See https://www.nvbar.org/member-services-3895/membership-information/attorney-specialization/certified-specialists/.

The CLE bureaucracy ignored both proposals and did nothing to enact any other meaningful change to actually try to better educate lawyers or inform and protect the public.

In 2012, my firm and others tried to encourage reform by producing and presenting substantive and specialized CLE at no cost to attendees for the purpose of trying to improve the practice and drive down the fees charged by others, as explained in Legal Note Vol. 54. We expressed the hope that if that approach was emulated by a sufficient number of others, enough of the profit motive could be taken out of the CLE racket to cause the CLE bureaucracy to focus on serving the legitimate interests of lawyers, public, and the courts.

Over the following six years, we produced low-to-no cost CLEs on a wide variety of family law topics, with any money received beyond the cost of snacks going to Legal Aid. The “Basics” series (Jurisdiction, Child Custody, Relocation, Property Division, and Practical Mechanics of Family Trial Practice) was well-received by those attending, as was the 1-hour Lunch-and-Learn series addressing topics from pension division to the new local rules.

And others did emulate that model – experts throughout the Bar started putting on programs at no cost in their various specialty areas, significantly enhancing the actual education of lawyers in multiple fields at enormously lowered cost to Nevada lawyers.

But this did not generate any money for either the Bar or the CLE bureaucracy, which reacted like a bureaucracy does, seeking its own perpetuation and expansion at the expense of those it purports to serve. Shortly after lawyers started receiving better, more relevant education at a lower cost, the CLE Board made a proposal resulting in decreased offerings and increased costs.

 

II. THE “NEW PROPOSAL”

In 2014, in a “turf” squabble, the CLE Board submitted ADKT 499. It asked the Supreme Court to reduce the number of CLE Board members appointed by the BOG since the Bar was a “provider” and the CLE Board complained of a perceived conflict of interest.

The CLE Board declared that to do its job, it had to be a “stand-alone” entity that was “financially self-sustaining” so as to “avoid or eliminate conflicts of interest.” It complained that the number of lawyers and therefore the fees it collected only “grows slowly” but the Board’s “profitability erodes as operating expenses [primarily its own salaries and benefits] increase over time.” It complained that in 2014, the CLE Board expended $15,000 more than it received from fees, while quietly noting a “reserve” from prior fees received of over $600,000.

ADKT 499 proposed changing the CLE Board’s “business plan” from reliance on annual attorney CLE fees (and late fees), claiming (at the beginning, anyway) its intent to get the “hugely profitable” CLE providers to start funding the cost of mandatory CLE to “reduce or eliminate fees for the lawyers.” It apparently never occurred to the CLE Board to explain why it should seek to be “profitable.”

The new plan was supposed to replace lawyer CLE fees by imposing on “accredited” CLE providers an annual fee of $500 plus $5 for each credit hour earned by every attendee, with another $5 per credit to be paid by each lawyer. For “non-accredited” providers, the new business plan charged a $25 “application fee” per program plus $5 per credit hour per attorney to be paid by the CLE provider, with another $5 per credit to be paid by each lawyer.

Begrudgingly, the fees would not be charged to providers “that are non-profit and do not charge attorneys for attending their programs,” or to “Federal, State, and local governmental agencies, nor for legal aid, provided they do not charge attorneys.”

The CLE Board predicted that the change would improve CLE in Nevada because “higher quality providers will accept new fees to continue operating in Nevada, while others will exit the State.” No explanation was suggested as to what denoted “quality” or how that had anything to do with being large for-profit enterprises.

The CLE Board also promised to increase efficiency and economy through use of electronic communications to replace paper, to streamline its processes, and to save staff time by ceasing to “cajole” or “hand-hold” lawyers and instead greatly increase financial penalties imposed against lawyers for non-compliance, predicting that doing so would decrease the total those fees by increasing lawyer compliance once lawyers were slammed with huge penalties.

The Bar opposed the reorganization and parts of the new CLE “business plan,” but agreed to collect the annual CLE fees along with annual Bar dues so that fewer lawyers would be confused and end up having to pay the very expensive “late fee” penalty that constituted 40% of the funding of the CLE Board.

As detailed in Legal Note Vol. 66, the proposed changes to the CLE structure exacerbated every defect in the CLE system and introduced new harms not previously existing, while doing nothing of any positive effect for anyone or anything – except for satisfying the monetary appetite of the CLE bureaucracy.
These included:

          A. The 1.5 Hour Maximum

The CLE Board sought to prevent anyone from “giving away” CLE credits without pumping money back to the CLE bureaucracy, and so imposed a 1.5 credit limit on those entities to which it grudgingly “granted exemptions” allowing them to provide free or discounted CLE credits. If they offered any more, they had to pay fees.

Predictably, this had the consequence of sacrificing actual education of lawyers to the goal of satisfying the arbitrary rule, distorting the value of actual education offered.

 

          B. The Fee for Scholarship

The new structure charged academics who wrote scholarly articles in law reviews or other publications $25 to have the CLE Board “recognize” their work. The message to academics was that if you volunteer your time and expertise to help educate the Bar by writing an article for the NFLR or Nevada Lawyer, you had to pay for the privilege of doing so. It actively discouraged lawyers from volunteering their time and expertise to write scholarly articles.

 

          C. The Added Fee for Obtaining Relevant Education

Those lawyers who did have a desire to improve their professional skills and sought out information and education necessary elsewhere to do so were assessed an additional fee by the CLE Board over and above the cost of travel and the courses themselves to have that education “recognized” – plus yet another fee if that course elsewhere had not been “pre-approved” by the Board. Of course those putting a program together in, say, Texas, would not contact the Nevada CLE Board in advance to “pre-approve” their curriculum; the fee structure was designed to simply generate additional fees paid in every instance.

The message to the attorney was that the Nevada CLE Board not only did not support an attorney who went to the effort to obtain the highest-quality education and training available, but would actively penalize anyone doing so.

 

          D. The Discouragement of Experts Sharing Knowledge

Before the new plan, among the positive effects of experts providing free CLE was exerting pressure on the for-profit CLE providers to lower their fees and improve the quality of those offerings in order to attract customers.

The CLE Board very deliberately sought to squash the practice of subject matter experts in Nevada giving away their expertise to their fellow attorneys for free, because it did not provide any money to the bureaucracy. As noted above, this effort was euphemized as trying to force “the exit of low volume non-accredited providers.” In other words, to prevent lawyers from teaching other lawyers for free.

The new regulations required anyone giving away their time, experience, and expertise to submit a $25 “application” fee and pay another $5 for every credit that every attendee received. In other words, for the privilege of volunteering to do all the work to provide a one-hour CLE for 30 people, a lawyer had to also pay the CLE Board $175. If 100 people happened to show up, it would cost $525. 1000 attendees? That would cost the volunteer $5,025.

 

          E. The Increased Irrelevance of CLE Under the Altered Program

By eliminating free “competition,” the CLE Board permitted the for-profit companies to lower quality and jack up costs, which they promptly did.

The process started immediately. The vacuum created once experts were told they would have to pay for the privilege of teaching others for free was filled by corporations calibrating how much additional money they could get from Nevada lawyers to allow them to “check the CLE box” for the year. Much of the product offered was utter dreck.

Spam CLE offerings increased immediately. Some offered “unlimited access” for “only $249 per year” – or individual courses at “just” $149 per every two credits ($968.50 per year). Others offered about-to-expire, out-of-state, virtually useless recordings for “just $69.99.” The race to the bottom in terms of quality accelerated, with the choice presented to Nevada lawyers increasingly becoming between “cheap” and “possibly useful.”

Predictably, most lawyers chose “cheap,” shrugging off the utter irrelevance of the discount offerings to anything to do with their actual practices.

This was the “other shoe” to the policy of discouraging lawyers from getting the best possible high-quality education by making them pay yet again after they already paid to get meaningful education. Instead, lawyers were encouraged to get utterly irrelevant “credits” as long as it was cheap, to keep their costs down. The CLE Board apparently had no problem with the fact that their new policies discouraged meaningful lawyer education as long as for-profit providers sent money to the bureaucracy.

 

III. RESPONSES FROM “STAKEHOLDERS”

Responses to the new regulations came in from the State, County, and specialized Bar organizations. All entities submitting comments were fixated on their individual self-interest – primarily for “exemptions” from the rules that would apply to everyone else. The Bar and the CLE Board essentially renewed their turf battle, and no one stepped back to address the big picture of why Nevada was requiring mandatory CLE at all.

A number of individual attorneys asked questions. One senior member of the Bar asked whether “mandatory CLE has caused the delivery of legal services to the public which are better than those which would have been delivered without it” – a fundamental question that neither the Bar nor the Board ever addressed. His point was summarized in the unanswered question of whether “the gross revenues extracted from the members of the Bar are actually doing anyone any good.”

Another noted that many members of the Bar are admitted in more than one state, and the Board was essentially double charging all such lawyers who attend CLE in those other states – without any kind of objectively valid reason other than the extraction of money. That lawyer noted that in Arizona there is no such organization or expense – Bar members are simply required to obtain the education, and to individually keep track of it, submitting an annual affidavit that they have done so.

After public comment, a hearing, and several rounds of written input, mainly from the BOG and other bar associations, the Supreme Court approved both the reorganization and the new business plan to go into effect in 2017, but continued the comment period for further review. The original rule amendments were withdrawn in 2018.

 

IV. PUSHBACK AND PROPOSED AMENDMENTS

The CLE Board revised its proposed regulations, to no significant improvement, and the various stakeholders filed further commentary throughout 2018 still pursuing their own individual interests.

The proposed regulations did not “grant” credit for teaching courses out of state at all, whether for a for-profit or non-profit organization – Regulation 9 effectively stated that teaching out of Nevada is worthless because other states will not pay the Nevada CLE Board to have their programs “approved.” This too was directly antithetical to any concept of encouraging scholarship by Nevada lawyers, making it that much more difficult for Nevada experts in legal subjects to maintain reputations for scholarship and leadership in academic organizations.

The CLE Board abandoned any pretense of “encouraging” the education of Nevada lawyers. The “revised” proposal required for an “exemption” both that no fee is charged and that every attendee agreed to take a pro bono case – it remained impossible in Nevada for experts to offer CLE for free as they had done. The CLE Board studiously avoided even addressing the fact that its proposed policies were designed to prevent lawyers from teaching other lawyers for free.

It became clear that the proposed regulations would prevent quality education from being presented to Nevada lawyers. As the Special Public Defender noted in its submission about the revised proposal, “Specialized CLEs from local practitioners are often the highest quality and they do not become better when there is a price tag attached to them.”

Every part of the “revised” proposal by the CLE Board was counterproductive to the concept of encouraging scholarship and quality education of Bar members, remaining solely concerned with acquiring money to sustain its bureaucracy.

 

V. A RADICAL CHANGE IN DESIGN

On December 21, 2018, the Nevada Supreme Court filed an order amending various Supreme Court Rules and requiring the CLE Board to adopt new regulations enormously changing the structure of mandatory CLE in Nevada.

The turf battle was resolved – the CLE Board was reconstituted as three members appointed by the Bar, and three lawyers and one judicial appointment by the Court.

The $40 annual fee was made a sum-certain cap. CLE reporting was made a lot like pro bono reporting – annual certification by each lawyer of CLE attended, subject to random audits for compliance with the 13-credit annual requirement. Essentially, this replicated the Arizona self-reporting system.

As of now, final amended regulations have not been issued, but it appears that the worst of the 2015-2018 changes have been swept away. There will apparently be no charge to subject-matter experts who provide CLE without charging for it, no fee to those attending such CLE, and no fee of any kind for teaching, or for writing scholarly articles and publications. The per-credit-hour fees assessed for seeking additional education elsewhere will apparently be abandoned, and “discretionary approval” can be sought for teaching courses out of state.

 

VI. REMAINING QUESTIONS – AND A STARTLING ADMISSION

No one ever answered the question of why we continue to have a mandatory CLE requirement at all. It is worth circling back to the policy that was supposedly being served by creation of mandatory CLE: improving lawyer competence, ultimately for the benefit of the public hiring those lawyers. It is well past time, 36 years on, to evaluate why this enormous expense of time and money is being incurred, and whether anything of any value is actually resulting from it.

This could be accomplished by a survey of Nevada lawyers to see if the anecdotal reports – that lawyers choose irrelevant CLE when it is cheap, that less pro bono work is done because of the CLE requirement, etc. – are statistically borne out, and by a review of the available literature and review of the several states that have apparently elected to abolish their mandatory CLE programs as ineffective for any constructive purpose. See, e.g., Mauricio R. Hernandez, Lawyers Wait On An Unlucky 13th Hour of Mandatory CLE In Nevada and blog by Attorney Mauricio R. Hernandez: Overwrought And Over Exaggerated But No Matter Over Prescribed CLE Is Always The Regulators Fix.

Whatever benefits do exist should be weighed against the impact on lawyers’ health, wealth, and time, including impacts on pro bono and other policy objectives identified as worthwhile. The resulting metrics would provide guidance as to whether mandatory CLE should be abolished or otherwise further altered.

Any decisions on the point should be based on the metrics provided by that study, not by the “P.R. value” of a pretense of appearing to do something about lawyer competence and public information that does not actually accomplish either.

If it turns out that Nevada’s mandatory CLE program is a multi-million-dollar per year farce doing no real good for anyone but costing lots of people time and money for no productive purpose, the plug should be pulled, and CLE in Nevada should be returned to an optional matter left to individual lawyers.

It seems likely that those who would seek out relevant education and training would continue to do so whether CLE was mandatory or not, and that the others would likewise be unaffected since they are not now doing anything that substantively improves their competence for the lawyer-hiring public.

In the debate over ADKT 499, I proposed such a study, which proposal was never addressed by anyone involved.

As the 2011 article discussed above suggested, if mandatory CLE is to be retained at all, it should be rendered meaningful for some purpose – at minimum, the Bar should be compelled to post each lawyer’s CLE record as part of that lawyer’s on-line biography, so that the public will get the benefit of being better informed about the education of the lawyers they are considering.

After the Supreme Court order issued, I asked the CLE Board questions about evidence that CLE does some good and about posting CLE records, as part of an inquiry into some holes in the new proposed regulations. The responses were illuminating.

When asked the “why are we doing this at all” question, the Board’s response was the circular non-answer that “The Board and the Nevada Supreme Court have determined that the public interest in Nevada is served by requiring lawyers to complete the thirteen hours of continuing legal education specified in SCR 210.” How “the public interest is served” was never addressed, Delphi having spoken.

The Board flatly rejected providing any information to the public, and dismissed the idea that it would be useful to those seeking to compare lawyers because “This Board has not been presented with any evidence that there is a direct correlation between the quality of legal service an attorney provides and the total hours of continuing legal education completed by the attorney.”

The admission was astonishing. It is hard to imagine a clearer reason to find out whether the tens of millions spent on mandatory CLE is accomplishing anything other than feel-good P.R.

It is not as if the Supreme Court has not previously been presented with budget impacts related to CLE. In 2016, the Court approved an expansion of CLE from 12 to 13 hours annually, so that every lawyer, every year, had to get a credit related to substance abuse and mental health. We were already the fifth most-expensive-to-remain-in-practice Bar before that change.

Justice Pickering dissented from the addition, noting the minimum $1 million in additional cost/lost productivity that change would cost, and the entire lack of any empirical evidence that it would do any good in the real world.

The same considerations – magnified twelve times – apply to the question of mandatory CLE generally. There should be a meaningful outside study and report of whether mandatory CLE actually accomplishes its intended purpose (or any purpose at all).

As to informing the public, the CLE Board is just wrong. Whether CLE is voluntary or mandatory, the Bar should post what CLE courses are taken by lawyers, because that information is relevant to those seeking out lawyers with updated education and training in their respective fields.

 

VII. THE FUTURE OF MANDATORY CLE AND MANDATORY BAR ASSOCIATIONS

In 32 states, including this one, attorneys are required to join and pay dues to a Bar association to be allowed to practice law. 18 others regulate attorneys without requiring attorneys to join a Bar association or pay money to a Bar association in order to practice.

Multiple lawsuits in multiple states have been filed to declare mandatory bar membership unconstitutional as a matter of violating lawyers’ first amendment rights by demanding compulsory contributions to speech with which they do not agree. The grandfather of these suits was Keller v. State Bar of Cal., 496 U.S. 1 (1990). Such suits are now proceeding in North Dakota, Texas, Oregon, Washington State, and Oklahoma.

The lawsuits generally seek to prevent forcing attorneys to subsidize Bar associations’ “speech” without their affirmative consent, or, alternatively, to order them to adopt procedures to protect attorneys from being forced to subsidize speech and activities that are “not germane to improving the quality of legal services and regulating the legal profession.”

In California, the prior Bar has been bifurcated into the mandatory disciplinary body, and an optional association called “California Lawyers Association” that represents lawyers’ perceived public interest, offers CLE, provides publications, and does many other things previously done by the mandatory Bar.

That is where the Nevada CLE Board’s admission comes in. If, in fact, there is “no evidence” of a “direct correlation” between a lawyer’s CLE and that attorney’s competence to practice law, then CLE is “not germane to improving the quality of legal services.” In the absence of such evidence, the imposition of mandatory CLE would appear to be an unconstitutional requirement virtually inviting the kind of lawsuits being filed elsewhere seeking the abolition of mandatory state Bar associations.

 

VIII. CONCLUSIONS

The Nevada Supreme Court should be thanked for altering the trajectory that the CLE Board was on, which was making mandatory CLE ever more expensive, less useful, and actively hostile to scholarship and substantive professional education. But large questions remain.

It is time to step back and find out whether the imposition of mandatory CLE on all Nevada lawyers actually does anything to improve the competence of those lawyers. If not, it should be discontinued. If so, whatever benefits the data reveals should be weighed against the massive cost of time and money incurred to produce it, and a data-driven policy decision made accordingly.

If there is, in fact, no evidence that mandatory CLE serves any legitimate purpose, continuance of the mandate could lead directly to a forced dissolution of the Nevada mandatory Bar entirely.

 

IX. QUOTES OF THE ISSUE

“The essential dilemma of education is to be found in the fact that the sort of man (or woman) who knows a given subject sufficiently well to teach it is usually unwilling to do so.” H. L. Mencken.

“I have never let my schooling interfere with my education.” Mark Twain.

“A learned fool is sillier than an ignorant one.” Moliere, Les Femmes Savantes, 1672.

“The learned are seldom pretty fellows, and in many cases their appearance tends to discourage a love of study in the young.” H. L. Mencken.

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For some of the CLE materials and articles produced by the Willick Law Group, go to https://willicklawgroup.com/cle-materials/ and https://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.

If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.