The scam what am

If you want to witness the interesting spectacle of my going from a fairly mild mannered, motherly lawyer type, to a screaming, foaming-at-the-mouth harridan, mention one acronym:  MCLE.  This stands for Minimum Continuing Legal Education, which I found an inconvenience when I was a big firm attorney and that I find an economic and time burden now that I’m a solo.

Continuing legal education did not used to be a mandatory requirement for practicing law in California.  When I started out as a lawyer, legal organizations and legal publishers would put together seminars and send out fliers in the hopes that lawyers would attend.  Often lawyers did attend because the seminars involved the lawyer’s practice area, and they promised to be interesting or to give the lawyer an edge professionally.  Lawyers took the classes on a strictly as needed basis, so that a lawyer who was just plodding along in a single area, reading the cases as they came out and churning through relatively uninteresting legal cases, might attend one seminar a year.  For example, a litigator might attend an annual half day seminar on new pretrial procedures.  (Or he might just read the new legislation emanating from Sacramento every year, or check the update to his favorite legal treatise, which would spell out all of the new procedural requirements.)

Then, in the late 1980s, the California State Bar suddenly announced that, if lawyers want to keep their licenses, they were required to take 36  hours worth of seminars over a three year period (a requirement since lowered to 25 hours over the same three years).  Not only that, but lawyers couldn’t just take classes in areas that might benefit them as practitioners.  Instead, they also were (and are) required to take several hours of classes in law practice management, legal ethics (which could theoretically help some lawyers out there), substance abuse, and identity politics — oh, sorry, that last should be “Elimination of Bias.”

I had a problem with this whole thing from the get-go, because I like the idea of self motivated self-improvement, not coercive, government mandated improvement (proving that I was a nascent conservative long before I knew it).  I also recognized immediately that the whole thing was a scam.  How?  Because it was set up so that the big firms didn’t have to dig into their pockets to fund their associates and partners for these seminars.  Instead, the big firms could create their own in-house seminars, something that often boils down to some long-winded partner bloviating for an hour about a case, while a captive audience of fellow firm attorneys sucks down caffeine in an often vain effort to stay awake.  Of course, for attorneys without big firm backing, the self-help route was (and is) unavailable.  The only option was (and is) to put your own money on the line for outside MCLE sources.

Now, there are some superb seminars out there.  One wonderful day, I attended Bryan Garner’s incredible legal writing seminar.  But you know what?  I would have been desperate to take that seminar anyway, without the necessity of government coercion.  I learned more in six hours with Bryan Garner than I had in the previous 15 years of practice — including attending other, much cheaper writing seminars.

And oh!, have I attended lots and lots of cheap seminars.  You see, if you don’t have a lot of money to play with, you don’t go to quality seminars of the type that were always offered, even before the mandatory MCLE program — seminars that could actually be useful or, at least, interesting (such as the aforementioned Garner seminar).  Instead, you hunt around for el cheapo seminars, regardless of whether the subject matter is relevant to your practice area.

There was a boom of these el cheapo seminars immediately after MCLE became mandatory, although prices only dropped with the internet.  In pre-internet days, a small firm attorney had to pay $200 to go waste some time listening to someone waffle on for a few hours about the fact that women and minorities are inevitably victims of large firm practice — unless those firms are women or minority owned.  Now, through the miracle of the internet, a lawyer can spend a mere $129 to get all required hours.  But if you think there’s any learning involved, you don’t know how to work the system.  You can read the material, of course, but it’s banal and self-evident.  So, you might be tempted to try a shortcut (not that I ever would, of course).  For example, if you have a large monitor you might, in one screen, open the essay about corporations or substance abuse or some other subject that doesn’t mesh with your practice needs.  In the other window, you could open the 4 question on-line questionnaire.  Then, using word search in the essay, you match the sentence in the essay with the question, and there’s the answer.  It’s theoretically possible to do 5 hours of MCLE in under 20 minutes.

What motivated me to blog about this scam — which has been a burr in my butt for almost two decades — is a segment in Jonah Goldberg’s Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning, about the anti-competitive effects of government regulation of business — and about the fact that businesses, that is, big businesses, are often happily complicit in this regulation since  it benefits them so much:

Consider, for example, the largely bipartisan and entirely well-intentioned Americans with Disabilities Act, or ADA, celebrated everywhere as a triumph of “nice” government.  The law mandated that businesses take a number of measures, large and small, to accommodate customers and employees with various handicaps.  Offices had to be retrofitted to be wheelchair compliant.  Various public signs had to be written in Braille.  Devices to aid the hearing impaired had to be made available.  And so on.  [And on and on as enterprising customers, employees, students and lawyers providing an ever expanding and often quite imaginative list of what constitutes a "handicap."  They're rational to do so, too.  If there's a trough, you'd be a fool not to feed at it.  --Ed.]

Now imagine that you are the CEO of Coca-Cola.  Your chief objection to this law is that it will cost you a lot of money, right?  Well, not really.  If you know that the CEO of Pepsi is going to have to make the same adjustments, there’s really no problem for you.  All you have to do is add a penny — or really a fraction of a penny — to the cost of a can of Coke.  Your customers will carry the freight, just as Pepsi’s customers will.  The increase won’t cost you market share, because your price compared with the competitor’s has stayed pretty much the same.  Your customers probably won’t even notice the price hike.

Now imagine that you own a small, regional soft drink company.  You’ve worked tirelessly toward your dream of one day going eyeball-to-eyeball with Coke or Pepsi.  Proportionally speaking, making your factories and offices handicapped-friendly will cost you vastly more money, not just in terms of infrastructure, but in terms of the bureaucratic legal compliance costs (Coke and Pepsi have enormous legal departments; you don’t).  [And I have several lawyer friends who have made a good living providing ADA advice to innocuous small businesses that suddenly discovered that they needed to make a lawyer part of their budget so as not to run afoul of the feds. -Ed.]   Plans to expand or innovate will have to be delayed because there’s no way you can pass on the costs to your customers.  Or imagine you’re the owner of an even smaller firm hoping to make a play at your regional competitors.  But you have 499 employees, and for the sake of argument, the ADA fully kicks in at 500 employees.  If you hire just one more, you will fall under the ADA.  In other words, hiring just one thirty-thousand-dollar-a-year employee will cost you millions.

The ADA surely has admirable intent and legitimate merits [and maybe MCLE does too, although I always assumed it was due to lobbying by MCLE providers.  --Ed.].   But the very nature of such do-gooding legislation empowers large firms, entwines them with political elites, and serves as a barrier to entry for smaller firms.  Indeed, the penalties and bureaucracy involved in even trying to fire someone can amount to guaranteed lifetime employment.  Smaller firms can’t take the risk of being forced to provide a salary in perpetuity, while big companies understand that they’ve in effect become “too big to fail” because they are de facto arms of the state itself.  (pp. 306-307.)

You can understand why the above language resonated so strongly with me.  I guess the last word on this subject, both vis a vis MCLE and ADA should go to an old saying:  The road to Hell is paved with good intentions.

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  • Chilynne

    You have a smidgeon of my sympathy. However, CPAs in my state are required to have 120 hours of CPE over a three year period, only half of which may be self-study. True, ours are only 50-minute “hours,” but it’s a big time commitment and, without a firm’s financial support, can involve a significant economic outlay. On the plus side, one simply never knows when 5 minutes of a two-hour presentation will be worth the entire outlay and then some. If one isn’t too particular about quality, many free CPE hours are available.

  • Allen L

    I fail to see how a continuing education thingy for attorneys is helpful to the citizen, that I am assuming they did it for. Suppose I’m falsely accused of a crime, my attorney is just terrible, and I’m sent off to the hoosegaw.

    “But they had their MCLE”

    Wahoo!

    Extraneous training for a bad practitioner isn’t very helpful.

  • http://ymarsakar.wordpress.com/ ymarsakar

    They just have to make sure that you, Book, always get your yearly renewal of their intellectual indoctrination treatment. We can’t let people with power, like lawyers, out in society if their ideology hasn’t been updated with the needed prerequisites, now can we.

  • http://bookwormroom.wordpress.com/ Bookworm

    That’s incredible, Chilynne — 150 hours! That’s a week of your working life every year. I still hate the program imposed on me, but I’m now incredibly grateful that I don’t have to suffer through the requirements imposed on you.

  • http://thoughtyoudneverask.blogspot.com/ Zabrina

    “…businesses, that is, big businesses, are often happily complicit in this regulation.”

    Governmental regulations (at all levels) as cronyism and payoffs for special interests and special friends of regulators. My eyes were opened to this and how it works at age 16 after reading “Atlas Shrugged.”

    In the intervening years it has only gotten worse in the U.S., and these days seems to be accelerating.

    Truly scary, the freedoms we are losing, the burdens being placed on free enterprise, the choices being lost. We all pay for this complicitly rigged waste of time and resources (to benefit special interests) in the end. It is truly a form of corruption.

  • greg

    I’m pretty sure the members of the Federalist Society take their CLE seriously (more or less; afterall, if works in their favor for cushy Republican appointments). What’s your problem?

  • Chilynne

    Book, the requirement makes sense. Tax laws change, new accounting standards are issued, etc., ALL the time! The various CPE offerings greatly simplify staying current. And, yes, it adds up to a week per year. However, those who get the most hours for the least effort are doing themselves and their clients a disservice. We can “chuse” to be Elizabeth or Lydia with respect to the educational opportunities.

  • Carol

    1. Well boo-friggin-hoo. I am a licensed insurance agent and broker and I have to get 24 hours of credit every two years, three of which now have to be in ethics education (hah!). All of this has to be evidenced somehow. If I do something self-study, I have to pass a test to get the hours. If it’s a seminar, I have to sign in and sign out to get my hours.

    One time I took an all-day seminar put on by the local bar association. By the end of the day, you could easily tell who the lawyers weren’t because all the lawyers had left. Turns out all the lawyers had to do do get their credit was show up and sign in; no evidence needed that they actually stuck around. We lowly insurance agents, though, had to sign in and sign out to get our credits.

    2. Goldberg got the stuff about business liking regulation and occupational licensing from Mises who pointed this out long ago. Occupational licensing, i.e., the bar association, is always, always, always started by the profession to be licensed. It is always sold as a way to protect consumers, which is pure unadulterated bullcrap, because it is always, always, always a means to limit entry into a profession and therefore to raise the incomes of those grandfathered into the licensing scheme.

  • http://bookwormroom.wordpress.com/ Bookworm

    I wasn’t trying to say lawyers have it worse than others. And Chilynne pointed out that, in the tax field, seminars may be the only way to pass on necessary information — although I would expect the CLE requirements to specific which seminars one needs to take. As I’ve noted, with lawyers, the only mandatory seminars involve politically correct matters that have little effect on most lawyer’s professional lives.

    The fact, Carol, that lawyers walk out illustrates precisely how they understand that their presence confers no benefit on them — it’s a sham. And what I object to, strenuously, is when the government imposes on a profession, not for any real benefit, but simply to create some sort of illusion — that lawyers are competent, perhaps, or that government is “watching.” As to that last point, government may be “watching,” but there’s no benefit from this scrutiny — scrutiny, of course, that comes at a cost that is inevitably passed on to the ultimate consumer.

    Perhaps if there was more indication that the government took the whole thing more seriously, I’d be less convinced that it’s nothing more than a scam. In the medical profession, for example, doctors have to get relicensed regularly in their field. That is, their CLE classes must be put to real use if they wish to continue. Here, all I need to do is pay — not learn, just pay — and I’m in. That’s why it’s a sham, and probably unlike CLE in other fields (which, if I recall, is precisely the argument opponents of California’s MCLE made when the idea was first put on the table in the mid-1980s).

  • greg

    And you wonder why they let you go? (Hint: it’s because you don’t have a clue.)

  • greg

    And you whine.

  • http://bookwormroom.wordpress.com/ Bookworm

    Oh, Greg, Greg, Greg, how you do assume. I’ve been a valued employee in every one of my jobs, with loving farewell parties on the occasion of my entirely voluntary departures.

  • jj

    It’s a waste of time for you, the firm pays the bills for their people – and the costs get passed on to the same place the costs always get passed to: everybody else.

    I was reading somewhere – no idea where – not long ago about the “lawyer tax” we all pay for everything. Pretty amazing. It’s a lot more than the extra penny Coke and Pepsi have to charge. Lawyer costs are built into everything.

    Back in my active shrink days I had to go listen to (and even occasionally teach!) a few hours of blather every year. This was, in that profession, part of the lawyer tax, too. (If you didn’t have the latest “specialized knowledge” and something went wrong somewhere, you were instantaneously sued, and if the course was missing from your resume, your insurance would have the excuse to also arrange to be missing.)

    So you were free to wonder: was this about improving your abilities, or making sure your resume looked okay to avoid being sued? Which was more important: avoidance of lawyers, or better performance? Was there substance to this – or just looks?

    Now – there was of course always at least SOME substance. But whether or not it related to your specialty was entirely irrelevant to your need to be there. You just had to be there, period.

    So mostly it was about avoidance of lawyers. Another form of lawyer tax.

  • jj

    There are of course those of us for whom worrying about, or commenting upon, keeping up professional standards will never be a consideration. Driving a wheelbarrow filled with manure doesn’t require it.

    BW – it’s so easy to ignore…

  • greg

    Oh, Greg, Greg, Greg, how you do assume. I’ve been a valued employee in every one of my jobs, with loving farewell parties on the occasion of my entirely voluntary departures.

    Hush, Bookworm, I’m totally infatuated with you and value the opportunity to read you daily. But I wouldn’t hire you in a million years.

  • http://bookwormroom.wordpress.com/ Bookworm

    That’s fine, Greg, to value your freedom not to choose me as a lawyer. It’s another thing to assume that I’ve been fired from my jobs.

  • Tap

    I remember reading some time back (in my home state Louisiana) about a kerfuffle amongst florists. Yes, florists. You had to be licensed by the state to sell flowers. The licensing exam included a practical portion – a floral arrangement to be judged by other practicing florists in your area..who seldom seemed to find the arrangements satisfactory.

    Imagine that.

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