President's Perspectives Column,
Hawaii Bar Journal
, February 2008
Mandatory CLE - has its time come? Hawaii is one of only nine states that does not have a mandatory continuing legal education requirement for its lawyers. While not requiring CLE for its attorneys, Alaska at least has what is described as a "voluntary CLE requirement" for its lawyers. The remaining seven states are Connecticut, Maryland, Massachusetts, Michigan, Nebraska, New Jersey, and South Dakota. Add the District of Columbia and the total is ten jurisdictions without a mandatory CLE requirement.
To provide a slightly different, but telling perspective, over eighty percent of the states have a mandatory CLE requirement. The requirements vary from state to state: the number of required hours, the nature of the legal education, and/or the period within which to fulfill the requirement. For example, California requires 25 hours of CLE over a three-year period, including four hours of legal ethics, one hour on substance abuse, and one hour on the elimination of bias in the profession. Illinois requires twenty hours of CLE during the initial two-year reporting period, and then 24 hours of CLE in the subsequent reporting period. Four of the total hours required for any two-year period must involve professionalism, diversity issues, mental illness and addiction issues, civility, or legal ethics. New York has different requirements for newly admitted and experienced attorneys. New admittees with less than two years of practice in New York (or less than five years in another jurisdiction immediately preceding admission to the New York Bar) are required to have a total of 32 hours "transitional" education within the first two years of admission comprised of 16 hours each year to include three hours ethics/professionalism, six hours practical skills, and seven hours of practice management and areas of professional practice. The experienced attorneys must have 24 hours of CLE over two years, including four hours of ethics/professionalism education. In contrast, Nevada requires 12 hours per year with two of those hours in ethics.
Lawyers admitted to practice in Hawaii enjoy a rare privilege of self-regulation, unlike other recognized professions or occupations such as medical providers, certified public accountants, real estate salespersons, and massage therapists, who are regulated by the State Department of Commerce and Consumer Affairs. A check of the Hawaii Revised Statutes shows that the legislature has not taken measures to regulate the legal profession here. In fact, legislation dealing with the unauthorized practice of law protects the legal profession and the public from those who either are not licensed or non-admitted lawyers (with certain exceptions). Whether Hawaii lawyers can continue to enjoy and maintain this rare privilege of self-regulation becomes (and has been) the subject of discussion when, for example, there is publicized discipline meted out to an attorney, there are stories of legal malpractice or even criminal acts committed by attorneys, or as greatly publicized in recent months, the significant need for legal services for the disadvantaged is unmet. If the members of the Hawaii Bar do not step up to self-regulate in a way that ultimately is satisfactory to the public as a whole and those entities and/or individuals with the ability to effect government regulation, there will be those looking to institute regulations to better ensure that members of our Bar Association meet certain basic requirements. The members of the Hawaii Bar need to demonstrate to the public their commitment to the excellence of legal services, and a mandatory CLE requirement is one way of making such an affirmative and positive demonstration.
It certainly is recognized that a segment of our membership is dead-set against a mandatory CLE requirement. Some members of our Bar simply are opposed to being forced to do anything. Others resist being required to do something that they may already do voluntarily, preferring to maintain the status quo. A mandatory CLE requirement has a benefit to the membership that can easily translate to the public in the continuing delivery of excellent legal services, the delivery of better legal services, and the avoidance of legal malpractice, ethics violations, and/or criminal acts that sometimes occur.
To facilitate mandatory CLE requirements, some states accept accredited teleconferences and live audio/video webcasts. Some states are looking to newer technological formats such as DVDs, podcasts and MP3 downloads of courses.
Many of us already make it a point to attend legal courses, seminars or conferences; thus, as a practical matter, a mandatory CLE requirement likely would not affect a significant change in the conduct of our own personal continuing legal education. For example, the HSBA conducted numerous seminars in 2007 on many different subjects. A total of 101 CLE credits were offered, and 1,486 registered Hawaii attorneys took advantage of these seminars. We all know of other privately-run seminars that were attended by segments of Hawaii's lawyers. Obviously, the number of hours, the period of time within which to complete the required hours, the nature of the required education, and the format type need to be discussed. Certainly, a doable and workable requirement as opposed to a burdensome, onerous, and costly requirement is the way to go.
If mandatory CLE's time has come, we would be better off getting on the ground floor to help shape such a requirement. The alternative of having such a requirement unilaterally instituted with little or no input from the bar membership, or to be blunt, forced down our throats like bitter medicine, is not the way to go especially if mandatory CLE is inevitable.
Jeffrey H.K. Sia, HSBA President
If you would like to respond directly to President Sia, please email president@hsba.org.