MANDATORY ETHICS CLE
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (October
2007)
Recently,
the Lawyers Professional Responsibility Board and the Office of the Director of
Lawyers Professional Responsibility held their annual professional
responsibility seminar. What originated
as simply a training session for district ethics committee (DEC) investigators
has expanded over the years to include substantive presentations on the Rules
of Professional Conduct and other topics of general interest to those who work
in the legal ethics field. No longer
confined to just Lawyers Board members and DEC investigators, the seminar is
opened to other invitees as well. For
the most part, current or former Board members and attorneys in the Director’s
Office make the presentations. Attendees
are eligible for Continuing Legal Education (CLE) ethics credits.Ftn 1
When
the Board and Director’s Office first held their annual seminar in 1983, it was
one of very few events offering CLE credits for a program devoted exclusively
to issues of professional responsibility.
Far more common at that time were day-long seminars that covered some
substantive area of law with a 30-minute or one-hour presentation on ethics (as
related to that particular field). In
1996, the CLE rules were amended and a mandatory ethics CLE requirement was
established.Ftn 2 Since then, attorneys have been required to include three
hours of ethics credits as part of the 45 credits they are obliged to earn
every three years.
Ethics Explosion
With
the 1996 amendment, an explosion of short, one- and three-credit ethics-only
courses began. The Board of Continuing
Legal Education reports that in the last year there were approximately 160
three-credit ethics-only CLE courses offered in Minnesota (including seminars
that are repeated via videotape), an average of almost three per week! In addition, well over 150 one-hour (or 1.25-
or 1.5-credit-hour) “lunchtime” presentations were offered last year dealing
with ethics. Another approximately 1,500
CLE seminars on other substantive topics included some ethics credit, sometimes
as a breakout session choice. This does
not even include the vast array of ethics credits available through national
seminars or online webcasts that may be approved. An entire industry has grown up around
mandatory CLE in general and for the special area of legal ethics.
The
attorneys and paralegals in the Director’s Office appear at many such seminars
annually — as a group averaging 75 speaking appearances per year — and take on
additional speaking engagements for civic groups or students that do not
qualify for CLE credit. In the years
before and immediately after the adoption of amendments to the Rules of
Professional Conduct in October 2005, our office’s attorneys “hit the road,”
offering an even larger number of courses highlighting the new rule changes. Some of the private attorneys who practice
extensively in the area of professional responsibility and professional
liability are on the faculty of just as many CLE seminars as the director’s
staff attorneys. They are very generous
with their time and expertise.
According
to the American Bar Association, 41 jurisdictions have a mandatory Continuing
Legal Education requirement, with 37 of them including some form of ethics
requirement. The number of total credit
hours required per year for ethics varies (in several states ethics is combined
with other related areas such as professionalism or professional liability),
though most require the same number of ethics hours that Minnesota does.
In
2006, Tennessee conducted an online survey of its state’s attorneys concerning
their satisfaction with mandatory CLE.Ftn 3 Tennessee’s
survey found that a large majority of responding lawyers generally approve of
mandatory CLE and believe the number of credit hours required, including for
ethics, is “about right.” While the number
responding, not surprisingly, was not particularly large, respondents, at a
minimum, did not indicate dissatisfaction.
The survey cited to an earlier Minnesota survey, taken before ethics CLE
became mandatory here, which found similar satisfaction ratings by lawyers in
Minnesota.
Is It Working?
After more than ten years, can we judge how well
mandatory ethics CLE is actually working?
Are Minnesota lawyers somehow any more ethical? Should that be the test? Based on Lawyers Board budget figures, today
there are, very roughly, 5,000 more attorneys actively practicing in Minnesota
than in 1996. Despite an increase in the
past year and a half, the number of complaints received by the Director’s
Office annually has decreased since 1996.Ftn 4 Intuitively
one senses that mandatory ethics CLE, together with greater emphasis on ethics
education in the law schools, has played a significant role in preventing more
complaints. One positive result from
ethics CLE, at least those programs at which members of the Lawyers Board or
attorneys from the Director’s Office appear, is that attendees are almost
always reminded about the advisory opinion service offered by the Director’s
Office. The advisory service has been
another factor in reducing complaints. While
character issues such as dishonesty likely are not susceptible to education,
many other types of potential misconduct may be avoidable.
My own perception is that many more lawyers are aware
of problem areas such as conflicts of interest, trust account recordkeeping,
and other professional responsibility issues than previously. This perception is shared by others. One legal ethics expert summarized the impact
of mandatory ethics CLE as follows:
Nearly every American jurisdiction now requires lawyers to earn CLE credits. … CLE requirements typically include a minimum number of hours yearly in legal ethics. That requirement is certainly good. Here’s why. Lawyers don’t think of themselves as practicing legal ethics. They don’t think they must stay current in the area of lawyer regulation. They practice antitrust law, bankruptcy law, or criminal law, and they know they must know about developments in those fields, but without a CLE ethics requirement, many would ignore the subject. … Perhaps this is understandable. Everyone is busy. But it’s unfortunate. I applaud the CLE ethics requirement because, however modestly, it means lawyers will learn important information that they otherwise would not.Ftn 5
Step by Step
I recently spoke to a group of immigration lawyers who
are very experienced in their particular area of law. This was a one-hour presentation on ethics
issues related to immigration law, but my point could apply to any other area
of law as well. After the session,
lawyers who certainly knew far more about their substantive area of law than I
did told me that they had not been fully aware of some of the details of the
Rules of Professional Conduct concerning candor to the tribunal and when withdrawal
was or was not a sufficient response to a client’s misrepresentations to a
tribunal. Perhaps they had a vague
recollection of these topics from law school or from studying for the bar exam
— but that was how many years ago? What
might they have done if presented with such a situation prior to this seminar? Now, however, they knew how best to proceed. One small step at a time, mandatory ethics CLE
appears to be working.
Notes
2 See Rules 6 and 9, RMBCLE. Required reporting of having taken ethics
credits began in 1999.
3 A copy can be found at: http://cletn.com/Documents/MandatoryCLESurveyAnalysis2006.pdf.