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On-demand continuing legal education should always be an option

One of the few advantages the pandemic has had for the legal system has been a temporary rule by the Wisconsin Supreme Court allowing all 30 bi-annual CLE credits to be taken using on-demand programs.

In an order dated Jan. 21, the Supreme Court, by request of the Board of Bar Examiners, extended this temporary amendment of SCRs 31.02 and 31.05 until the end of 2021.

Here’s an idea: Make the extension permanent. In other words, allow all CLE credits to be earned using on-demand programs.

A preliminary question may be whether mandatory CLE serves any worthwhile purpose at all. Certainly, it makes money for CLE providers. As one commentator, Professor Joseph Marino, put it: The initial justification for mandatory CLE was that we are a self-regulating profession and we need to ensure that all attorneys are informed of changes in the law. Although this sentiment is certainly justifiable and relevant today, what started out as a well-intentioned regulation has turned into a multimillion dollar industry. New providers pop up every day offering credits for as low as $7.99 each.

Mandatory CLE serves another purpose. Although it is quite easy – and can even be quite inexpensive – to comply with the Supreme Court rule, every year a small number of lawyers do not do so. The most recent online statistics show that, for the 2017-18 reporting cycle, 229 of the 8,885 lawyers required to report CLE credits, or less than 3% of the total, were suspended for non-compliance. Undoubtedly some of these were lawyers who simply retired (or maybe even died) without reporting their status (well, death is a difficult status to report), which means the actual “ignored or forgot” number is quite small.

Still, the requirement weeds out a number of lawyers who cannot comply with an easy requirement. Whether the cost outweighs the benefit is another question.

One benefit would be if mandatory CLE resulted in improved legal services. This is, of course, impossible to measure by any objective means. Subjectively, as one of the old-timers who practiced before mandatory CLE, I can say it doesn’t seem that our legal system is better today than it was before. But none of this really matters since mandatory CLE is not going away.

A more pertinent issue is how many of those 30 bi-annual hours could be derived from on-demand programs rather than live programs. Before COVID, the answer was 15 credits could be had on demand, although not EPR (ethics and professional responsibility) credits. On-demand programs are defined as an “on-line program delivered over the internet, consisting of a program previously approved by the board.”

The reason given for the limitation of on-demand CLE is to ensure that whatever information is being presented is up to date. Since an on-line program can be available forever, there is no guarantee that the information it offers will still be current.

Although that reasoning has merit, there is a significant value to on-demand programs. First, they can cost much less than live ones, since once they are “on the shelf,” they present no additional costs. More importantly, they offer viewers the ability to pause, rewind and replay either sections of a program or the entire thing. Anyone who has attended live seminars can attest to the number of lawyers who are doing things other than paying attention to the program – or who are even in the hallways on their cell phones.

So there is no guarantee in any event that lawyers are paying attention. There is no test or quiz given at the end. All that is required is a physical presence – or in certain cases, signing in at the beginning of a program.

On the other hand, for those not just going through the motions but actually interested in the content (undoubtedly the great majority of attendees) there is significant value in providing on-demand programming. The phone rings? Hit pause. Think you missed something? Hit rewind. For anyone like me with ADD, pause and rewind are invaluable.

What about the risk of stale information? Well, if I’m correct that the vast majority of lawyers are indeed interested in the content of the information, the marketplace will decide. Some programs, such as on ethics, change little, if at all, over the years. Others, quite possibly such as a recent CLE program in which I spoke about the effects of the pandemic on the practice of family law, will be unlikely to attract viewers in the (let’s hope) near future.

So, thank you BBE and the Supreme Court for extending the temporary rule. Now, how about making it permanent?

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

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