New Zealand Law Society - What's wrong with compulsory CLE?

What's wrong with compulsory CLE?

By Kristy McDonald QC

It’s the time of year when I have cleared my desk enough to think about whether I have met my Continuing Professional Development (CPD) requirements.

I’d like to be having a holiday: it’s been a very long year and I’ve achieved quite a bit professionally – worked hard, done new things and learnt new information, worked with senior colleagues, had successful judgments issued from the courts, had good feedback from other lawyers, judges and clients, managed my practice well, introduced some new systems, managed some stressful issues and did okay. Much of that took research and study: learning all the way.

Really, the only issue for me right now is that I need a break. But I’ve been so busy I haven’t done my CPD points so I need to do 10 hours before the end of March and as the next couple of months will be busy I have no option but to do them in my holiday. That’s a great shame as I really need a holiday.

I would not satisfy the “how to manage your stress” and “your time” papers: they say you need to have breaks, holidays, not be stressed, find time to relax.

But so be it: the rules say I need to do the 10 hours. It doesn’t seem to matter whether I need upskilling in any particular area, nor indeed whether I actually learn anything from the seminars that are provided. Just that I pay the fee, complete the hours and answer a few questions to prove I listened (although my answers don’t count so no one really notices if I sleep though the seminar).

So, do we all really need to put ourselves through the ennui of compulsory CLE? Does it work?

What does it achieve and why are we doing it?

The Law Society says that “CPD (not CLE) canhelp lawyers become better legal professionals”. Which lawyers? Certainly nobody would claim that CLE identifies (or even improves) the under-performing lawyer. The requirement to complete 10 hours CPD has no benefit in terms of identifying the bad lawyer. It’s possible that if we all have to do 10 hours then the bad lawyers get swept up and some of that “bad lawyer” group might suddenly become good lawyers. But I haven’t seen any evidence to show that will happen. Nor does there seem to be any process by which such a thing is or could be measured.

Lifelong learning is vitally important. Remaining technically competent, up to date, ethical, and engaged with colleagues lies at the heart of professionalism. And I think the vast majority of the profession want to stay competent and current.

So we are left with a requirement to do 10 CLE hours because the Law Society thinks it’s good for all of us. Is that it? And it’s compulsory because if it wasn’t we wouldn’t do it. Or is it just that 10 hours of compulsory CLE is something that can be counted? And if you can’t count it, it doesn’t count?

Employers see compulsory CLE as a way to keep staff up to date and to improve quality. Regulators believe the purpose of CLE is to maintain competence and improve quality. There is scant evidence for either.

Many practising lawyers see CLE simply as a means to attain credits for registration.

CPD

Let me acknowledge at the outset the value of appropriately focused continuing professional development (CPD). Lifelong learning is vitally important. Remaining technically competent, up to date, ethical, and engaged with colleagues lies at the heart of professionalism.

And I think the vast majority of the profession want to stay competent and current and do that as a matter of good professional practice.

My question is whether having a compulsory requirement is necessary or achieves anything.

Educational concepts

Children are compelled to go to school by parents, teachers and society. Compulsion is based on educational theory derived from children’s learning (pedagogy).

The Law Society’s CLE requirement is compulsory. That is schoolish and pedagogical.

Of course the Law Society does show some flexibility but the compulsion remains.

How then, do adults learn?

The principles of androgogy (adult learning) are these:

  1. Adults want and need to be involved in how their training is planned, delivered, and executed. They want to control what, when, and how they learn.
  2. Adults can draw on what they already know to add context to their learning.
  3. Memorising facts and information is not how adults learn. They need to solve problems and use reasoning to absorb information effectively.
  4. What adults are learning needs to be applicable to their lives and be implemented as soon as possible.

Adult learning is real life learning: self-directed and problem-based.

So why are there 10 compulsory hours of CLE?

What are we trying to achieve?

Do highly motivated, competent professionals really need the burden of a compulsory compliance framework of CLE credits to perform well?

On the face of it the current regime achieves little except satisfying a public perception that “something is being done” to keep lawyers competent (it isn’t) and the Law Society perception that counting credits usefully objectifies the process (it doesn’t).

And there is a downside,

  • CLE requirements are a tick box exercise that wastes competent professionals’ time;
  • Cost is passed to the client, but does not actually provide assurance that the client might reasonably expect.

Legal education experts should …

Acknowledge that CLE does nothing to catch the poor performer – we need to do something else and something better.

Find a way to recognise good practitioners who are continually updating and checking their currency on issues. Most lawyers, especially those involved in litigation, are constantly subjected to rigorous peer review by colleagues and judges. They don’t need to go back to school.

Change the spin: the Law Society CPD Rules acknowledge the importance of adult learning principles but persist in compelling lawyers to record 10 formal hours: but compulsion should have no place in adult learning. The compulsion drives lawyers to go back to school and take the easy option of seminars and webinars to get their points.

Design a process that is really flexible enough to recognise that competent adults learn best when they are directing their own learning and solving work problems, without compulsion.

Kristy McDonald ONZM QC kmcdonald@kmqc.nz is a Wellington-based Queen’s Counsel.

Some comments from the Law Society | Te Kāhui Ture

CPD Manager Helen Comrie-Thomson responds to Ms McDonald’s views:

The Law Society | Te Kāhui Ture welcomes feedback on the role and effectiveness of its statutory continuing professional development (CPD) regime.

Most, if not all, modern professions have recognised CPD plays an important role in ensuring professionals are maintaining and building on the core competencies required to perform. The practice of law is no different, and as the writer acknowledges, “success in the legal profession requires constant learning through research and study”. The vast majority of the profession would no doubt agree – while lawyers are required to complete just 10 hours continuing professional development over the CPD year, experience shows most lawyers complete well in excess of this. For instance, in the 2018/19 year, lawyers audited completed an average of 21.6 CPD compliant hours.

The Law Society | Te Kāhui Ture also agrees that there is value in “appropriately focused continuing professional development (CPD). Lifelong learning is vitally important, [and that] remaining technically competent, up to date, ethical, and engaged with colleagues lies at the heart of professionalism.” However, it should clarify that the CPD scheme has actually been purposefully designed to ensure that learning is targeted at each individual practitioner’s needs and is therefore providing worthwhile outcomes for the investment that has been made. It is also worth stating that, in line with the principles of andragogy, the current CPD model allows for variety and choice so that lawyers can meet their needs in the way that best suits them.

Ultimately, however, each lawyer is responsible for choosing a learning activity that is right for them. If they do so, this will help them to improve their practice and develop themselves as legal practitioners. This could include skills such as oral and written communication skills, practice management skills, leadership skills, presentation skills, or knowledge and understanding of the law. If a lawyer felt they needed to develop their time management or organisational skills, they could include these skills as learning needs in their CPDPR. Activities needn’t incur a cost. Lawyers may be able to count writing, teaching, one-to-one coaching or mentoring, being a facilitator or participant in a study group, or preparing as a lead and presenting submissions on proposed reforms of the law or of legal processes and procedures.

It should also be noted that one of the cornerstones of our CPD scheme, and arguably its most important feature, is reflective practice. Reflection begins when lawyers develop their learning needs through consideration of their previous year’s plan and record, their strengths and weaknesses, career goals, and development of knowledge and skills. As they attend activities and fill those needs, they reflect on how their targeted learning has allowed them to do so, how they might apply their newly learned knowledge or skills in the workplace and the next steps they might take. Lawyers are encouraged to revise their CPD plan throughout the year so that they understand their progress and next steps. Development is a process and is not meant to be addressed once a year in March.

Again, the Law Society | Te Kāhui Ture welcomes feedback from the profession, both positive and negative. This is certainly the case in terms of the CPD regime. In next month’s LawTalk, which coincides with the start of a new CPD year, the Law Society | Te Kāhui Ture will expand on the planning aspect of a CPDPR with some tips and tricks for helping you to get the most out of your CPD investment.

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