Conison, J --- "Defining Continuing Legal Education: Law School Education and Liberal CLE" [2007] LegEdDig 4; (2007) 15(1) Legal Education Digest 10

Defining Continuing Legal Education: Law School Education and Liberal CLE

J Conison

[2007] LegEdDig 4; (2007) 15(1) Legal Education Digest 10

40 Val U L Rev 325, 2006, pp 1–16

Continuing legal education has not lent itself to grand theory. It tends to be viewed as an essentially practical field and the few books, journals, and conferences dealing with the subject largely approach it from this practical perspective. Still, one can divine four principles that have motivated CLE and broadly guide its scope.

The first, and perhaps most fundamental, principle is that law school is inherently incomplete. Law school is a three-year, self-contained program. It is self-contained because, unlike graduate programs in medicine or mathematics, it presupposes no specialised body of knowledge or skill on the part of those admitted to study.

Second, law changes. New fields emerge and existing ones evolve and become more complex.

Third, for any of a variety of reasons, the focus of an individual’s practice might change. One reason is that an area of practice can disappear. Whatever the cause, an attorney may have a need to build new expertise. Continuing legal education programs aimed at the practitioner new to an area can help build expertise quickly.

The fourth principle underlying CLE is the need for public confidence. Lawyers provide more than legal services. They assume leadership and managerial positions in government, business, and society. They serve on civic, philanthropic, religious, educational, and other boards. Because of the importance and pervasiveness of lawyers in our society, it is vital that there be public trust in the profession as a whole. One way to promote this trust, especially regarding lawyer competence and integrity, is to require a modicum of continuing legal education each year. This is a central rationale for mandatory CLE.

As noted above, one of the guiding principles of CLE is that law school education is incomplete. The first form of incompleteness yields the need for CLE of forms now common, the other the need for what we have called liberal CLE.

The curriculum of law schools today is substantially designed to train generalists in the law. The basic pedagogic principle is that a law school should prepare its graduates to pursue any form of practice, whether law firm or corporate, business-oriented or individual-oriented, big-city or small-town. Of course, a law school can have a particular emphasis, but it is only an emphasis within the general framework of training generalists.

Law school education, thus, is a kind of liberal education. It seeks to instill an approach to problems and induce intellectual versatility through an emphasis on thinking, reasoning, analysing, and arguing. This is the ultimate meaning of the phrase ‘teaching students to think like a lawyer.’

Yet, the weakness of the generalist approach is that the graduate is no more a fully competent lawyer than a college graduate with a philosophy major is a fully competent philosopher. But unlike philosophy or medicine, law has no institutionalised paths to ensure that the initial, generalist education is properly completed. Rather, there is a hodgepodge.

Thus, the importance of continuing legal education, both as means to further a lawyer’s education and as means to assist individual initiative. Bridging the gap programs and other programs specifically for new lawyers can help facilitate the move from law student to practicing lawyer.

That law schools provide a type of generalist education is well appreciated; so, too, are its limitations. Less well appreciated is the fact that law schools also provide — from another perspective — a specialist education: specialist in that it focuses only on a subset of the roles lawyers fulfill and the careers they pursue.

Law school education is designed to equip graduates to handle disputes in courts and other formal venues, give advice on legal rights and obligations, negotiate for clients, and otherwise represent clients in transactions. This design reflects a common understanding of what practicing lawyers do.

Law school educational design is not affected by mode of instruction. The case method, the problem method, lecture courses, skills courses, and clinical courses differ in structure and emphasis, but all are directed toward preparing graduates to assume these canonical roles.

It is because there are other important functions and roles not emphasised that law school education may be said to be specialised.

Other, more specific, standards seek to ensure that graduates have knowledge and skills necessary for client service. Thus, Standard 302(a) provides that: A law school shall require that each student receive substantial instruction in: (1) the substantive law generally regarded as necessary for effective and responsible participation in the legal profession; (2) legal analysis and reasoning, legal research, problem solving, and oral communication; (3) writing in a legal context ... ; (4) other professional skills generally regarded as necessary for effective and responsible participation in the legal profession; and (5) the history, goals, structure, values, rules, and responsibilities of the legal profession and its members.

These constraints and their common understanding have entrenched the focus on the specific lawyer roles and functions noted above.

No-one would deny that the roles and functions currently emphasised in law school are fundamental or that law school educational programs should indeed be structured to train lawyers for them. But to put emphasis in one place is to reduce it elsewhere, and the areas of reduction include some important roles and functions of a lawyer. Among them are the roles of public citizen and learned professional.

Preparation for the lawyer roles currently emphasised, such as advocate or advisor, is best accomplished through an education in basic legal subjects and in the skills and competencies identified in the ABA Standards and the MacCrate Report. By contrast, preparation for the roles of public citizen and learned professional is best accomplished through an education that reveals perspectives on law and introduces bodies of knowledge that promote deeper understanding of law, its purpose, its aims, and its development. These roles are served through courses dealing with the social context of law and legal institutions; the aims of law reform; legal and other branches of history; foundational considerations of justice, philosophy, religion, and political theory; and the discoveries of economics, sociology, and other social sciences.

Thus, there is a need to educate for these roles after law school. This is not a new insight. In an opening address at the Third Arden House Conference on Continuing Legal Education, William Reece Smith, Jr., discussed the need for continuing legal education of just this kind to promote the ends of professionalism.

For many people, continuing legal education may be a better venue than law school to instil perspective on law and provide training to support the roles of public citizen and learned professional. It is sometimes said, partially in jest, that college education is wasted on the young. For the same reason, a person who has experience with law and the legal system might be better equipped to understand the meaning, function, impact, and practicalities of law reform and might better appreciate the ways in which social, political, philosophical, and other considerations can enter into discussion and action. Similarly, a person who has been in practice for a time may have a heightened appreciation of the value of cultivating ‘knowledge of the law beyond its use for clients,’ and a heightened motivation to seek it. Indeed, anecdotal evidence suggests an unmet desire on the part of many practitioners for opportunities to gain just such perspectives and forms of knowledge.

Lack of emphasis on perspective and on these other key roles of lawyers is only one way in which law school education, as specialised, is incomplete. Another is insufficient attention to what lawyers and law school graduates do.

To begin, consider what lawyers actually do as practicing lawyers — as advocates, negotiators, and counsellors. They provide many more services for clients, and serve many more client needs, than those considered specifically legal. This results, in part from the fact that handling a legal problem of a client is so often, at bottom, a matter of resolving a personal problem or issue, such as conflicts with family members, a feeling of lack of appreciation, or the desire for an apology. Fifty years ago, Erwin Griswold urged that law school education would be strengthened by giving more attention to what he called ‘human relations,’ particularly the teachings of psychology and the social sciences.

Since that time, law schools have undertaken more instruction in these areas of human relations, often in the context of negotiation or mediation courses. But again, there are limits to the time law schools can devote to these subjects.

Thus, the need for continuing legal education in this area. Here, too, continuing legal education has potential to be even more effective than law school courses, again because of the value in bringing experience and context to the instruction.

A second area of incompleteness relates to the kinds of careers and jobs law-trained individuals pursue. Quantitative data on long-term employment patterns of lawyers are scarce, but it is obvious that law school graduates pursue an enormous variety of careers and jobs that are not specifically legal — in business, in government, in nonprofit organisations, in religions, in journalism, in higher education, in consulting, and in many other domains.

Just as law schools cannot feasibly provide specialised training in all areas of law, they cannot provide more than a smattering of specialised education to support this panoply of non-legal careers. Thus, support must be left to education after law school.

While law schools can provide some preparation, time and resources are once more a severe limitation. It is not a new insight that CLE should serve this group of lawyer functions and roles. In fact, the point was prominently made at the very outset of serious national attention to continuing legal education. The Report of the first Arden House Conference in 1958 contained, as one of its findings, that future programs of continuing legal education ‘must help the lawyer to fulfil a wide range of professional responsibilities,’ including responsibilities to the public of a general character, such as service on educational and charitable boards, leadership of public opinion and community leadership.

The validity of this finding has not diminished with time. It simply has not received the attention that the argument of this essay suggests it deserves.

Two main principles emerge from the prior discussion. First, liberal CLE should compensate for the specialised character of law school education, just as a great deal of current CLE compensates for its generalised character. Second, liberal CLE courses should (a) support important roles of lawyers (such as public citizen) not fully served through law school education; (b) support professional work of lawyers and law-trained individuals that is based in training they received in law school; or (c) promote important professional values or support important non-professional activities (such as civic service).

Of course, to the extent courses and programs that satisfy these principles are the basis for CLE credit in a state, more detailed criteria might be needed.

Although detailed criteria must be left to each state, the prior discussion points to some important areas that generally fall within the scope of liberal CLE: (a) Applied Psychology and Human Relations; (b) History, Philosophy, and Other Subjects Valuable In Providing Perspective on Law and In Making For An Educated and Well-Rounded Professional; (c) Current Developments in Government, Politics, Economics, International Affairs, Social Structures, and Demographics; (d) Leadership, Management, and Other Business-Related Subjects.

A number of objections can be raised to this proposal. Several are worth considering, although none undermines the conclusions and recommendations.

First, it can be argued that any lawyer (or, indeed, any person) who is interested in subjects that fall within the ambit of liberal CLE can pursue them himself, through books, magazines, journals, books on tape, college classes, or otherwise. It is unnecessary to devote CLE resources to these topics.

Second, it can be argued that liberal CLE topics are not a core concern of continuing legal education, because they do not promote attorney competence. There are two responses. To begin, if ‘competence’ is intended in the narrow sense of knowledge of substantive law and possession of trial and certain other legal skills, then again the argument proves too much.

On the other hand, if ‘competence’ is understood in the broader sense of competence to fulfil the functions and roles typically fulfilled by lawyers, then the argument is simply wrong.

Third, it can be argued that courses of these kinds are not as important to attorneys or to the profession as CLE courses of kinds now widely offered. This is an over-generalisation and simply untrue in many cases.

Fourth, one purpose of CLE is to assure the public of attorney competence and ethics, and it can be argued that this purpose would be undermined by allowing credit for liberal CLE courses. This is a very doubtful claim. It is difficult to see why a CLE program on the history of tort law or on the management of non-profit boards would be perceived as frivolous or inessential.

Fifth, it can be argued that liberal CLE courses should not be used to fulfil mandatory CLE requirements. If the argument here is that liberal CLE courses should not count at all toward the required CLE credits, then it is just a back door to the previously rejected arguments. If, on the other hand, the argument is that liberal CLE courses alone should not be permitted to meet the mandate and that, say, a minimum number of credits of other kinds of CLE should be required, then the argument is plausible, but it does not undermine the conclusions reached above. All it tends to show is that a state should adjust CLE requirements to specify, say, a minimum number of credits for CLE of other types, or to set a maximum on the number of liberal CLE credits that could count toward the requirements. That is a detail of implementation, not a reason to reject liberal CLE.

Much of continuing legal education today responds to the generalist character of law school education — to its design for training generalists in the law. The argument of this Essay is that the scope of continuing legal education should be expanded to respond to another — specialist — character of legal education: that is, its focus on only a subset of the many roles and functions of lawyers. We call this additional form of continuing legal education liberal CLE because it is directed toward broadening lawyer education beyond the specialised base and toward broadening lawyers’ knowledge and perspective.

The potential benefits of expanding continuing legal education in this way are substantial. Continuing legal education should complement law school and contribute substantially to a system of lifelong education for lawyers. Expanding its scope as proposed here would enable continuing legal education to more fully serve its purpose and more effectively meet lawyer educational needs: specifically, those relating to important roles and functions of lawyers not currently served by law school or CLE, and to the broad range of careers, occupations, and roles pursued by law school-trained individuals.

The arguments advanced here are not entirely new; some were advanced long ago, when serious national attention was first given to the aims and potential benefits of continuing legal education. A broadening of continuing legal education would support educational needs, promote professionalism, help lawyers and law school graduates better serve their many constituencies, and serve the public interest in lawyer competence.