Making CLE Voluntary and Pro Bono Mandatory: A Law Faculty Test Case
50 Pages Posted: 24 Mar 2018 Last revised: 13 May 2018
Date Written: 2017
The vast majority of attorneys in this country are required to complete 10 to 15 hours of continuing legal education (“CLE”) every year, an experience well summarized by one attendee’s observation that “[k]nowledge is good, but coerced seat time is wasteful [and] insulting.” The primary rationale for mandatory CLE is to help ensure competent client representation, but the mandatory system fails to achieve that goal. Instead, mandatory CLE has become a self-perpetuating industry that earns hundreds of millions of tuition dollars for course purveyors but demonstrates little, if any, connection to better serving the public.
By contrast, almost no attorney is required to complete a single hour of pro bono service. Although the American Bar Association (“ABA”) recognizes the “critical” need for free legal services for “persons of limited means,” attorneys simply are encouraged to volunteer their time. This voluntary pro bono system has proven to be so woefully inadequate that Justice Sonia Sotomayor recently declared her support for a “forced labor” approach to attorneys’ pro bono responsibilities.
Responding to this critical need, a current trend in the profession focuses on requiring pro bono service from law students and bar applicants — easy marks with little ability to protest. This effort, however, sidesteps the harder question of mandatory pro bono for licensed attorneys, including the law professors who may be an aspiring attorney’s first professional role models.
More than a decade ago, Dean Erwin Chemerinsky argued in favor of mandatory pro bono service for law faculty, hoping to “at least induce debate and force examination of how to better engage law professors in using their talents to help those who need it.” That debate has yet to materialize. Law professors have at least as much of an obligation as other attorneys to provide pro bono service, but their resistance to doing so has resulted in rates of participation that Professor Deborah Rhode has described as “shameful.”
This Article argues that the time is ripe to upend the status quo — to eliminate mandatory CLE and to explore replacing mandatory CLE hours with required pro bono service hours.
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