James C. Mitchell
Rua António Gonçalves
LT 4, Apt 3A
3040-375 Coimbra, Portugal [email protected]
U.S. phone 520-907-2478
I write to support this proposal and to stress a requirement for the legitimate regulatory activities suggested by Petitioners: to be essential, a program must work. No mandatory bar function should be undertaken without proof that it is likely to achieve its asserted goals. No existing function should be continued without periodic proof of performance.
One State Bar function identified by Petitioners as permissible is enforcing mandatory continuing legal education. Permissible, but unproven. Perhaps in the future it will be possible to reduce wasted time, onerous costs, and the State Bar’s temptation to push political viewpoints. At present, however, MCLE as imposed here fails any realistic standard of necessity for regulation of the practice of law.
Consider the recent appraisal of a distinguished task force appointed by the Georgia Supreme Court to study lawyer competency. After a two-year research project, the task force in 2023 “found no scientific study or empirical evidence to support the claim that compulsory CLE is an effective means of maintaining and enhancing lawyer competence, and after 40 years of mandatory CLE in Georgia and elsewhere, the absence of such support is striking. And yet, mandatory CLE requirements impose real costs upon lawyers, year after year.”
That conclusion is astonishing for its clear-eyed candor. Bar regulators nationwide have avoided any careful examination of MCLE for decades. To my knowledge, the only other state to rigorously study its forced CLE scheme was Michigan. There, the mandate was rescinded, with one Michigan Supreme Court justice finding that it had “no more value than chicken soup.”
MCLE’s futility is obvious to millions of its dragooned customers, but a hard sell to bar associations that cherish their cut of the course fees and the warm fuzzy bragging rights for promoting “education.” As I noted in 1999, MCLE represents “the unseemly mating of cash cow and public relations bull.” Our State Bar once boasted about the profit it was making, apparently forgetting that the State Bar’s CLE profit was the members’ loss.
As the Georgia report indicates, customary rationalizations for compelled CLE are crumbling in their vacuum of verifiable value. Over the years, however, some MCLE supporters have attempted to thwart informed criticism by arguing that the mandate is a done deal. “That train has left the station,” they say.
Yes, but what a muddled metaphor. Nobody ever bought an overpriced train ticket for the purpose of leaving a station. Travelers want to get somewhere. MCLE’s asserted destination was always a mirage, a mythical land where forced torpid seminars protect the public and ensure that all the lawyers are above average. That train has not arrived. For all we know, it’s off the rails and spinning its wheels in the desert sand somewhere, feigning optimism by puffing, “I think I can, I think I can….”
But it can’t, given the proven paucity of evidence supporting it. That train is a half-century late in some states, thirty-five years in Arizona. This is no way to run a railroad or regulate a learned profession.
Petitioners’ proposal would help eliminate the mandatory bar mission creep that sucked Arizona into the MCLE swamp. It could help lead to MCLE's elimination or at least to substantial mitigation of its harm. I therefore respectfully ask this Court to approve the requested rule.
The Georgia Task Force report:
(I am a former member of the State Bar of Arizona. Resigned in good standing upon retiring and moving to Portugal.)