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.