LegalBusinessWorld Posts

The Legal Education Gap

January 21, 2019

If you are anywhere close in your career trajectory to me, you have approximately 20 years of experience, and expect to practice for another 10-15 (or heaven forbid 20+ years). We are experienced and confident in our legal skills, and many of us are experts in our craft. 

 

Yet there is something that is chipping away at the confidence level of many attorneys, especially in law firms. Each morning the legal news headlines shout at us that our industry is transforming before our eyes and any lawyer who doesn’t adapt will invariably be left behind. Apparently, innovation is now praised over experience and status quo is scoffed as stodgy and antiquated. 

Most lawyers try to stay abreast of the changes in law, naturally, but it is hard to stay on top of what is going on around us lately. Every lawyer needs to know practical information about buzz words such as “legal ops”, “legal tech ancillary arrangements” and services”, “artificial intelligence”, “alternative service providers”, “alternative fee arrangements” and evolving from “legal practice to legal service delivery.” Jargon like this is thrown around a lot; but so far, in our daily practice, these concepts are more a peripheral hype than an imminent reality. Many lawyers realize that this might not be the case for long. So where can they turn for legal education that will give them a general awareness of the macro changes happening in the legal ecosystem and ultimately modernize their client offerings? Currently: everywhere … and nowhere.

 

A google search of Continuing Legal Education (CLE) possibilities yields a tsunami of choices. For a mere $59.99 or $500 or $1500 anyone can become an expert in blockchain or BitCoin (in one hour!) or learn how GDPR can be handled in multi-national transactions. There are conferences devoted to legal tech or live webinars on getting “tweets” admitted as evidence. Lawyers can even self-study from pre-recorded online videos about A.I. or go back to tech basics with classes on creating Powerful PowerPoints or becoming a Microsoft Word Wizard. 

 

There just has to be something out here that can help synthesize what all that sensational legal press is about. But what would it look like? What is really happening across the industry? What would actually help bridge this education gap for attorneys who are willing to adapt and want to try practicing out of their long-established comfort zones? 

 

We need to fill this education gap with a practical set of information that can be applied in a real-world setting. We need an easily accessible industry overview and real-world practical tips for lawyers looking to guide their corporate clients towards these new services and opportunities. I envision a professional development program that would both fulfill their need for a holistic skillset and fulfill their CLE requirements in an engaging way. Before exploring my own ideas for developing a program to match this need, it is important to first understand the current state CLE requirements and review the choices available now. 

 

CLE Requirements 

Lawyers in our nation’s capital are off the hook when it comes to mandatory continuing legal education (MCLE). Years ago, the D.C. regulators decided there was no proof that requiring CLE was making lawyers more competent. [1] Joining D.C. in shunning MCLE are Maryland, Massachusetts, Michigan and South Dakota. 

 

Michigan had implemented MCLE for seven years before rescinding it in 1994; the state ultimately decided that MCLE was not effective in enhancing their attorneys’ knowledge of substantive law [2]. 

 

However, the remaining states recognize the potential of CLE to ensure their lawyers carve out a slice of time every year to brush up on the rules governing their practice areas or specific legal topics that spark their curiosity. Since every state with MCLE demands an ethics or “professional responsibility” component, it also forces lawyers to take a moment to check their ethical obligations, take care of their mental health and potentially acknowledge any unhealthy lifestyle choices common to stressed-out practitioners. On average, states require between 10-15 CLE credit hours per year, a small chunk of which must be ethics or professionalism focused. Reporting cycles typically range from one to three years with many states allowing attorneys to stockpile a certain amount of credits and roll them over to the following cycle.

 

In recent years, thanks to advances in technology, there has been a surge of methods available for completing CLE. Traditionally, credits were earned solely in a live, in-person classroom setting. These days a key component of CLE are the various self-study delivery methods. This can include interactive live webinars or conference calls, video replays of live events, or pre-recorded, on-demand video or audio lessons.

 

States regulate the use of these online options to varying degrees. For example, many states favor the live, participatory webcasts and restrict the number of pre-recorded courses. However, I expect we will see a trend of loosening these restrictions moving forward. Starting July 1 of this year, Rhode Island doubled their on-demand limit per cycle from three credits to six credits [3]. In 2016, the state of Washington got rid of their “live” requirement altogether [4]. By my count, 12 states already place no limitations on either the quantity or style of online options. Only eight states still require at least some credits be earned via in-person traditional classroom settings [5].

 

Another CLE trend is using what I call “extra-curricular lawyering” to chip away at a mandated CLE obligation. This can include any number of personally enriching activities that serve the community, future lawyers or the legal profession as a whole, such as:
 

  • Teaching an approved CLE course

  • Legal research, writing and publishing

  • Serving on the State Board of Bar Admission or Bar Examiners 

  • Serving on Committees devoted to Rules, Professional Responsibility, Ethics or Professionalism or the Unauthorized Practice of Law

  • Enrolling in or auditing a course at an accredited law school

  • Enrolling in an approved bar review course

  • Serving as a member of the State Legislature

  • Acting as a judge in a mock trial or other law school activities

A state by state analysis of CLE requirements offers up these other interesting opportunities: At least ten states allow pro bono work to count for CLE credits. Florida gives credit for participation in the state’s “Adults Civics Teaching Initiative" and "Justice Teaching Classroom Initiative". Ohio and Oregon encourage CLE study of Access to Justice topics. Indiana allows credit for “Non-Legal Subject Matter” courses (think Accounting or Medicine for Attorneys) while Oregon allows up to six credits for attending courses on business development and marketing or participating in Personal Management Assistance Activities. Washington’s requirements might be the most flexible, allowing for over half of the credits to be earned in vague areas like personal development, office management, improving the legal system or any “Nexus Subject” related to the lawyer’s professional role, but not directly related to the practice of law. 

 

Of particular interest to me are the mentorship programs available in at least seven states. Experienced attorneys are given credit for helping new lawyers transition into practice.  

 

If taken advantage of, it is often these extra-curricular methods that provide the greatest potential for attorney growth and opportunities for participants to go beyond check-the-box CLE. But as with most things, many of these options require heaps of personal initiative or a significant investment of time, a rare commodity in the legal community.

 

Technology Requirements 

Later this year, we expect the North Carolina Supreme Court to decide if technology training should be a required portion of continuing legal ed. The N.C. Bar is recommending this change, which would position them as only the second state (behind Florida) to make tech training mandatory as part of their CLE [6].

 

As many of us already know, the shaky epicenter of our industry overhaul is the use of technology to improve efficiency and client service.  At least 31 states have now made it a lawyer’s ethical duty to be competent in the risks and benefits of using tech [7]. While the definition of “competence” is vague, it is widely considered to mean that attorneys should have a general awareness of the technological opportunities available to serve their clients. (No, you do not need to how to “code”!)  

 

The reasoning behind this tech competency duty is clear: even the most old-fashioned lawyer is now forced to spend a significant amount of time online or using technology each day. They email, they draft documents electronically, they have a calendar synced to their phone, and they use Zoom to video conference with clients. Many lawyers interface with eBilling or eSignatures or automated workflows. Twenty years ago this was not the case. Perhaps this very article would have been a hard copy delivered to you via messenger or regular mail. A recent Bloomberg Law article [8] quoted a professor who took a CLE course in 1995 titled, “The Internet: Hip or Hype?”. That was only 23 years ago and now the internet is at the very heart of legal service delivery. 

 

As noted above, Florida is still the only state that explicitly requires technology training as part of their CLE requirement. Every three years, three out of 33 credits must be devoted to technology education.  In other words: one hour per year. As pointed in out in a recent Thomson Reuters article [9], this is the most proactive acknowledgement of the importance of tech, but this is still a “laughably inadequate” amount; article author Tad Simons states, “Technological competence isn’t a skill attorneys can simply add to their CLE checklist — it’s something that needs to be woven into their DNA.” Changes are happening continuously and at a hyper-speed, making it all the more critical for lawyers to get a baseline understanding of technology now. Admittedly, this can be a scary thought for those on the tail end of their careers. 

 

Below is a sampling of ways Florida’s technology CLE requirement could be met. These are from the Florida Bar CLE and Resource Center and Lawline.com. They range in complexity from basic to advanced, with many practice-specific options: 
 

  • Basic Technology for Today’s Law Practice

  • Basic Law Firm Data Security, Privacy, and Cyber Liability

  • How to Manage Your Email Using Technology–and Get Your Time and Sanity Back

  • Using Technology to Make Judge-Friendly Briefs

  • Running a Better Law Firm Through Project Management 

  • The Next Frontier: Florida’s e-Courts – Everything You Wanted to Know but Were Afraid to Ask

  • How to Optimize your Billing and 

  • Collections to Make your Practice More Profitable

  • A Lawyer’s Guide to Disaster Preparedness, Insurance and Technology Security

  • Artificial Intelligence & Technology are Impacting the Practice of Law

  • Solo-firm Re-Boot: Gearing Up for Efficiency and Success

  • Cybersecurity and CyberTech Skills Attorneys Need to Know

  • Can Attorneys help Secure the Internet of Things?

  • Patent Eligibility of Software Innovations

  • Personal Injury Trials and Technology: A Plaintiff’s Perspective

  • “Wibbly Wobbly, Timey Wimey Stuff: Practice Management Software and Apps, Ethical Concerns of Using Them on Smartphones and Laptops, and Maximizing Productivity with an Emphasis on Cyber Security in Law Firms
     

Again, dedicating a single hour a year to technology will not make someone an expert. But, even if basic tech seems advanced to you, these Florida programs offer a bite-sized flavor of what is happening in the legal community.  And awareness of opportunity is the first critical step. 

 

Now that we understand the general scope and flexibility of the nationwide CLE rules and expectations, let’s review the overwhelming array of choices to meet these requirements.

 

CLE Sampling of Options 

Where are the practical, well-rounded CLE options that help lawyers get up to speed on the macro changes happening in the legal ecosystem?

Today’s CLE course options are riddled with sponsored nonsense, deep dives into one practice area or ultra-specific mumbo jumbo for the already-experts. There is no shortage of offerings on legal practice or procedure, but a holistic overview of the essentials is missing. To be fair, on each CLE provider or conference I have come across in my research, I have usually found at least one course that tries to bridge this education gap, one small step at a time. For example:

 

  • Lexis Nexis: Drinking from a Fire Hydrant: Basic Legal Research in the Age of Technology

  • Practicing Law Institute (PLI) one-hour briefings:

    • Process and Project Management for In-House Counsel

    • Evolving Your Metrics and Analytics Process

    • The Ethical Challenges of Incorporating New Technologies into your Legal Practice

    • Think Like a Lawyer, Talk Like a Geek 2018: Get Fluent in Technology.

  • Florida Bar’s Legal Fuel Resource Center: How to Increase Profits and Stay Organized by Running a Lean Law Firm

  • Association of Corporate Counsel (ACC): Legal Operations Maturity Model Series or Mini-MBA for In-House Counsel

  • ILTA: Emerging Challenges to Law Firm Dominance - Trends in Legal Service Providers, Competition and Capacity

  • Corporate Legal Operations Consortium (CLOC)

    • Collaboration: How Legal Departments and Law Firms Can Work Together to Enhance Value

    • How to Build an AFA Program: Best Practices in Design, Implementation and Management

    • How to Build an AFA Program: Best Practices in Design, Implementation and Management

    • Successful Technology Implementations Start with Change Management: Best Practices for Legal Operations Professionals
       

There are also “just-in-time” video learning resources available online (e.g., Hotshot Legal), and for those who learn best from formal peer discussions, there are roundtable legal forums from providers like Consero.

 

There is one upcoming conference which I find encouraging. The Ark Law Firm Innovation Summit promises to focus on the “people and process aspects” of innovation instead of just the enabling technology. They will also discuss how changing business models can change how firms collaborate/communicate with their clients, develop external alliances and transform the talent management function. 

 

Please note: these are only a sampling of what I’m sure are dozens if not hundreds of similar choices, again creating an overwhelming selection that are often sponsor-driven. It is important for attorneys to get an unbiased view on what is important for them to know about the legal industry. Who will help shed light on the fast-moving changes that the Bir 4 are making? Where can lawyers look for a simple explanation of which legal tech is real and which is hype? 

 

Conclusion  

There’s a certain conundrum when it comes to mandatory continuing legal education: for lawyers who take their responsibility seriously to stay current with case law and trends, they would seek out continuing education even if was not required. In my experience, most lawyers have curious minds and look forward to new information that will improve their job performance and client service. 

 

Continuing Legal Education, just like the legal industry itself, has exploded with new opportunities in recent years resulting in a million pathways that could lead to modern-day success or further confusion.  Certainly there is an opportunity here to simplify and clarify for the hundreds of thousands practicing lawyers who need a synopsis of what is going on in their own industry.

 

Footnotes: 

[1] Lisa A. Grigg, The Mandatory Continuing Legal Education (MCLE) Debate: Is it Improving Lawyer Competence or Just Busy Work?, 12 BYU J. Pub. L. 417 (1998). Available at: https://digitalcommons.law.byu.edu/jpl/vol12/iss2/11

[2]  Rocio T. Aliaga, Framing the Debate on Mandatory Continuing Legal Education (MCLE): The District of Columbia Bar's Consideration of MCLE, 8 GEO. J. LEGAL ETHICS 1145, 1145 n.l (1995). As cited in Chris Ziegler and Justin Kuhn’s: “Is MCLE A Good Thing? An Inquiry Into MCLE and Attorney Discipline,” available at: https://www.clereg.org/assets/pdf/Is_MCLE_A_Good_Thing.pdf

[3] Lawline.com (Last accessed on August 16, 2018): https://www.lawline.com/cle-requirements/rhode-island

[4] American Bar Association CLE website (Last accessed on August 16, 2018): https://www.americanbar.org/cle/mandatory_cle/mcle_states/states_p-z/washington_state.html

[5] Independent research from various online CLE course providers (e.g. lawline.com), the American Bar Association CLE Site and individual state bar associations.
[6] Jason Tashea, North Carolina Bar to propose mandatory technology CLE credit. ABA Journal (May 21, 2018). Accessed at: http://www.abajournal.com/news/article/north_carolina_bar_to_propose_mandatory_technology_cle_credit <By the time of publishing NC has made tech education a requirement>

[7] Robert Ambrogi, Tech Competence. Lawsites (last accessed on August 16, 2018) https://www.lawsitesblog.com/tech-competence/

[8] Michael Greene, Do attorneys need mandatory technology CLEs? N.C. Bar says yes. Bloomberg Law (May 21, 2018). https://biglawbusiness.com/do-attorneys-need-mandatory-technology-cles-n-c-bar-says-yes/

[9] Tad Simons. For a Lawyer, What Does Tech Competence Really Mean? Thomson Reuters Legal Executive Institute (April 20, 2018). http://www.legalexecutiveinstitute.com/lawyers-technological-competence/

About the Author:

Lucy Endel Bassli is a legal industry expert, engaging in thought-leadership projects to drive change and evolution in the delivery of legal services. She is the founder of InnoLegal Services PLLC, a modern solution provider that offers legal advice and consults on operationalizing the practice of law. She works with law departments and law firms on innovating their legal service delivery and consumption models; and trains lawyers on innovative practices. Lucy specializes in all things contracting: resource allocation, automation, process optimization and smart risk-taking. Lucy also serves as the Chief Legal Strategist for LawGeex, a cutting-edge AI legal tech start-up automating contract review services.

 

Lucy recently joined Snowflake Computing as Deputy General Counsel, Legal Operations, Contacting and G&A. 

 

In her 13 years at Microsoft, where she ran an enterprise contracting solution, Lucy focused on complex and global outsourcing contracts and gained firsthand experience in legal outsourcing to assist her with high-volume contract transactions. She launched an innovative “managed services” engagement with law firms and actively worked on continuously improving the value received.

 

Prior to joining Microsoft, Lucy practiced law at Davis Wright Tremaine, LLP in Seattle, WA, focusing on commercial transactions and commercial bankruptcy. Lucy received her J.D and BA from the University of Houston in Houston, Texas, where she grew up, but has been living in the Seattle area since completing law school.

 

Lucy is a licensed member of the Washington state bar association, and was named to the National Law Journal list of Outstanding Women Lawyers, 2015. She is a frequent speaker on topics of legal services innovation, legal technology and legal process outsourcing.

 

 

 

 

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