Paul-Noel Chretien*

If you're a lawyer, chances are that in order to stay one, you have to go back to school now and then. Since 1975, 38 state bars have imposed "mandatory continuing legal education" requirements on their members.

If you're a lawyer in one of those 38 states, you probably assume that your state's legislature or highest court justifies the requirement on the grounds that it reduces malpractice complaints and/or improves lawyer competence. In fact, nothing could be farther from the truth, as I found out last year when I almost became subject to mandatory continuing legal education myself, as a member of the District of Columbia bar.

The continuing legal education requirement is an expensive scam perpetrated on the public, which ends up paying for it in higher lawyer fees. The requirement benefits no one but the bar bureaucracy: Dues soar as new jobs are created to approve courses, supervise teachers and administer mammoth programs.

The D.C. bar recently tried to become the 39th bar to institute a continuing education requirement. It used the usual method: It appointed a task force that produced a 200-page report endorsing a massive 12-hour-per-year program for the District's 43,000 active members, and voted, 14-1, to recommend that the D.C. Court of Appeals mandate the program. (D.C.'s program, like many, exempted judges, who'd be less likely to approve it if they had to go through it.) Lawyers not complying would be suspended.

Yet the members of the task force were not disinterested parties. Many teach or administer law courses; one is a law school dean. It's not surprising that they would vote for mandatory continuing legal education. What's surprising is the bar would pick such obviously self-interested people for a task force that it expected to be representative of the membership.

Just what did the task force's report say? Notably, it was vague about cost; it gave no total price tag. At the same time, it acknowledged that there is no evidence that making lawyers go back to school works. It admitted that none of the 38 states with a continuing education requirement had demonstrated that its program provided any benefit to lawyers or the public. And it acknowledged that the D.C. bar did not expect that a continuing education requirement would decrease consumer complaints of lawyers malpractice or decrease intentional misconduct. In addition, the task force found no competency problem among Washington lawyers, who voluntarily take relevant course to sharpen skills. Apparently the marketplace and the threat of lawsuits already work to encourage lawyers to maintain competence.

Nevertheless, the report proclaimed that the "expectation" of clients and the law's status as a learned profession mandated that all lawyers continually trudge back to school. Besides, the report noted, since 38 states have such a requirement, D.C. lawyers are at "risk" of losing "public confidence" if they don't jump on the bandwagon. Yet the report cited not one public complaint about insufficient continuing education. Finally, the report claimed that instituting a continuing education requirement might stave off "irresponsible" calls for legal reform.

Because few of the D.C. bar's 43,000 active members were even aware of the existence of the task force, only two of us -- David Epstein and I -- showed up at its final public meeting. We both spoke against the proposal, and while we expressed different arguments, we agreed the issue should be submitted to the membership. (My conclusions are my personal views and do not necessarily reflect the views of the Justice Department, where I work.) The board of governors, however, refused our request to put it to the members.

I then initiated a petition for referendum to force a vote by the membership, binding on the bar. No bar had ever been compelled to allow its members to vote on continuing legal education. We quickly obtained double the necessary 300 petition signatures. Meanwhile, D.C. bar officers twice asked me not to file the petition. One cited the $20,000 one-time mailing expense. I replied that the requirement, if enacted, would cost $27 million yearly in tuition and lost wages alone.

Faced with a pending petition, the board of governors rejected, 11-8, a comprehensive program but passed, 16-1, an ethics-only program. After the vote, a glum supporter of the larger program stated he would try again another year. (Similarly, a New York bar official explained its proposed program is "waiting for a Democratic governor" for funding.)

Finally, the membership voted last month. Pro and con articles fairly stating opposing viewpoints accompanied the ballots. The result was that D.C. lawyers rejected mandatory continuing legal education by a 6-1 margin. More than 86% said no to a comprehensive program; 78% rejected the ethics-only program. And 43% of members, a record turnout, voted. These lopsided results demonstrate just how out of touch the bar's leadership is with its members' concerns.

Nationwide, 630,000 lawyers are saddled with this burden, with an average yearly requirement of 12 hours of courses. At a conservative $20 per credit hour, 12 hours cost $240. Adding just $320 for two day's lost income, the total expense per lawyers zooms to $560. The nationwide cost, ultimately borne by the public, exceeds a staggering $350 million a year.

Some states now require specific courses that go beyond teaching ethics or professionalism. The California and Ohio bars both mandate that lawyers study substance abuse, and California also puts "emotional distress" and the "elimination of bias in the legal profession" on its list of required subjects.

When Minnesota became the first state to enact a requirement for continuing legal education, it did so in response to suggestions within its bar and a concern that "consumer pressure" might cause the state legislature or the Federal Trade Commission to become involved in lawyer certification. States have used this unfounded fear as a rationale ever since. But the public does not complain that lawyers don't go to enough classes -- it gripes about legal costs and competent lawyers who win acquittals for unpopular clients.

To be sure, it is harder to repeal an existing program than to stop a proposed scheme, but every state bar has a procedure -- legislative, petition, or the like -- allowing its members to be heard. The bar's role is to improve the legal system. All too many bar leaders have forgotten that fact.

(Reprinted with permission of The Wall Street Journal copyright 1996, Dow Jones & Company, Inc. All rights reserved.)

*Mr. Chretien is an attorney at the U.S. Department of Justice.