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How Lawyers Can Learn to Stop Worrying and Love CPD

Is continuing professional development a waste of time? Or, more specifically, have law societies made a mistake by using mandatory professional development as a mechanism for ensuring lawyer competence?

The Supreme Court of Canada recently upheld the Law Society of Manitoba’s mandatory CPD requirement in Green v Law Society of Manitoba 2017 SCC 20. I blogged about the case at ABlawg.ca, where I suggested that the Court’s decision was obviously correct. My analysis on that point was, though, premised on principles of administrative law – my claim was that the Court was correct to hold that the Law Society of Manitoba acted within its statutory authority in requiring lawyers to complete mandatory continuing professional development, and in automatically suspending them if they failed to do so. It was not about the merits of the Law Society’s regulatory choice per se.

In response to my blog, however, Rocco Galati took up the underlying regulatory decision on Twitter, saying “CPD is useless, ineffective, cash-grab, & does nothing to protect public or competence”, that it is a “cruel placebo” and that “competent lawyers exhaust hundreds of hours a year updating their knowledge/skills. The 12 hrs do zero for incompetents.”

Is Rocco right? There is a great deal of academic literature directly on this point (some of which Omar Ha-Redeye usefully discussed on SLAW in 2015), but in this column I want to respond to Rocco’s objections based instead on my own experience and observations as a teacher, a student, and in light of my broader thinking about being a lawyer. That response is of course fundamentally unsound – whether CPD positively affects lawyer competence is an empirical question, and requires an empirical answer. But I think there are nonetheless some observations that might be useful for thinking about CPD, which may temper expectations around what CPD can accomplish, but also provide some strategies for lawyers so they can feel less unhappy and more hopeful about completing their CPD hours than Rocco is.

The case against CPD is compelling. Incompetent lawyers tend to be incompetent in specific ways – they personally lack the skills to complete the particular matters on which they have been retained. Providing generic information about the law cannot fill those specific gaps. Lawyers are not assessed on CPD they do, and any professor can tell you that “this is not on the exam” generally ensures an instant cessation of student learning. So even if the information delivered in CPD is useful, there’s a good chance lawyers won’t learn it. The content of much education – in any institution – is uneven, featuring boring, ill-prepared or unqualified teachers, disengaged classrooms and an environment unconducive to learning. But CPD has certain features that make it more likely to be a poor experience. There are few subjects that you can engage with in a comprehensive way in 12 hours over the course of a year (and, yes, that is a minimum, but for these purposes we have to assume people are completing the regulatory minimum). That is especially so if the CPD is required to cover a range of topics, and given that the students in CPD will not be required to do any pre-class preparation, such as reading course-related materials

The case for CPD is, however, also compelling. Competence is not a binary state – a lawyer is not either competent or incompetent, and no lawyer has reached a state of perfection. The things a lawyer could learn that would benefit her practice extend far beyond doctrinal law, and can relate to psychology, economics, political developments, technology, global affairs and even the opportunity for critical reflection on accepted lawyer practices. Indeed, I’m not sure there is any information about the world that doesn’t have the potential to help a lawyer do her job better. Sure, generic information about the law will not be helpful, but in my experience even really good lawyers often do not know things that are important– for example, the extensive psychological literature showing the vagaries of human memory, as evidenced by the fact that Canadian trial advocacy books generally do not mention it as relevant to witness preparation. And amongst the array of information that a competent lawyer may not know, there are many things that can be effectively and usefully communicated in an hour or two.

Moreover, lawyers (like every one else) do not know what they do not know, such that even if they educate themselves, they may not address important gaps in their knowledge. CPD has the potential to expose lawyers to things that they did not realize they needed to know. It has the possibility to expand the range of questions the lawyer asks. Further, there is something important about lawyers collectively saying “we do not know it all, we know we do not know it all, and we are going to collectively commit to a program of continual education”. It’s a collective statement of humility, and that’s a useful thing for any profession to remind itself of.

While assessment does incentivize learning (and channels student energies into the information that is most important), learning driven purely by intellectual curiosity and a learner’s own interests is likely to stick more deeply and thoroughly than examination prep. Students may learn a great deal to prepare for an examination, but there is not an unreasonable chance that they will remember little of it two months later (that perhaps speaks more against exams than assessment in general, but still). A student who engages with something because they care about it will learn, whether they are assessed or not.

And while in any educational environment teachers can be bad, so too can they be inspiring, engaging, thoughtful and well-informed. People listen to TED talks for fun and education, and there is no inherent reason why a well-delivered CPD program cannot be just as good. A thoughtful and well-informed person providing information on topics that matter to lawyers but about which those lawyers are not well-informed, will make those lawyers better than they were before. A well-delivered CPD program may not be the thing to turn an incompetent lawyer into a competent one, but it can be a deck in the scaffolding that constitutes lawyer competence.

Given these cases for and against CPD, I’d offer two propositions. First, law societies must be modest in their claims about CPD. No, CPD will not ensure lawyer competence. It will not make an incompetent lawyer competent. Mandatory CPD creates an opportunity for a lawyer to enhance their competence, but it does nothing more than that. Second, the effectiveness of CPD depends entirely on the quality of the teacher, the relevance and interest of the program, and the enthusiasm of the student. A teacher plodding through materials will teach nothing. A program that does not expand a lawyer’s knowledge, will be of no use. And a lawyer who walks into a classroom with a metaphorical “f*** you” written on her forehead, will get an exact nothing out to match the nothing she put in.

And those propositions lead to the following advice. In approving and designing CPD, law societies and providers should think expansively and creatively about what CPD can be. If it were me, I would approve any program which provides the opportunity to expand a lawyer’s knowledge of human behaviour, politics, economics, world affairs or critical thinking. My focus would be on being engaging, rather than on delivering Important Content. Since almost any information about the world can be useful to a lawyer’s practice, the most important thing is that the lawyer’s knowledge be expanded, not that it be expanded in a particular and obviously-relevant-to-legal-practice way.

And in taking CPD, I would say to a lawyer, be effortful and engaged. Do what you can to make it not a waste of time. Choose a topic that sounds interesting, even if you aren’t obviously sure how it relates to your practice. Try to pick topics about which you know the least, not about which you know the most, so that you are more likely to explore areas where you do not know what you do not know. Pick an instructor or program that teaches in a way you think will not bore you. Be open to the possibility that there are things you do not know, and that your instructor has something to offer. Ask questions, answer questions, read. And, most importantly, put away your phone.

Comments

  1. Thomas Harrison

    Interesting discussion. Many of these observations about lawyers also apply to other kinds of legal professionals, paralegals, notaries, mediators, and adjudicator. Given public discussion and proposed legislation (Bill 337) to impose mandatory legal education on judges, much also applies to the judiciary as well.

  2. Bradley Wright

    The major, an fatal, problem with MCPD is that it provides information that is rarely timely. There is a lot of useful information in the lecture materials (the instructors are not dummies), but it rarely arrives in your brain when need it. It may come years after you could have used it or years before you need it; i.e., at a time when you have forgotten you have it or cannot find it in a timely way in the myriad of unindexed materials you have collected at CPD sessions over the years and decades. CPD is in largest measure a waste of time and resources that could be far more profitably applied to creating an encrypted, key-worded data base of precedents, relevant case law, and other materials (not unlike the old bar ad materials except these would be updated continuously as needed every year past your call) that all lawyers could access for research purposes at any time; i.e., the time they need it. Accessing the data base would provide information to the Law Society as to who was accessing the data and how often. There would be a small cost for each instance of accessing the data, with an annual or monthly cap. Those costs could be passed on as disbursements. The revenues received would defray the costs of creating and maintaining the base. Law firms could even sponsor discrete areas of law and keep the information updated. They could hope for referrals and co-retainers (and, I predict, would get them) and even share in the revenues based on hits to their information.

    We need to think of all the lawyers in Ontario as members of one giant law firm with thousands of Chinese Walls, facilitated by being scattered in thousands of offices, but with access to excellent materials that are accessible to all in a timely way. That is in the public interest, and also in the interests of the profession.

    The foregoing is a brief description of the vision, but all criticisms of it are overcomeable. Once in place, we would wonder how we ever managed without it.

  3. CPD is like chicken soup: “It may not help, but it can’t hurt.”

    I agree with Alice. A lawyer can get a lot out of CPD if the lawyer is “effortful and engaged;” and so it is with life generally. Like life, one will get nothing from CPD if one makes no effort to get anything from it.

    Most lawyers that I know say they enjoy CPD, benefit from not only learning of the latest developments, but also from the networking opportunities, and have no problem meeting the mandatory 12 hours that the LSUC requires in Ontario.

  4. Bradley Wright

    CPD is like soup all right. If you don’t follow the rules, you’re in it. Right up to your minestrones. Whether the rules actually achieve the goal of continuing enlightenment is tangential.

    And meeting the 12 hours is a problem for lots of lawyers. Not much networking occurs when watching webinars. Learning about the latest developments, assuming that is what the given course is teaching, still does not help you when you need to recall that development years later and have to plough through reams of CPD materials to find it, assuming you even can. I am not sure what “effortful and engaged” means in this context. Sitting in the lecture hall rapt for every second and minute? Asking numerous questions (if everybody did that, the lecture would bog down). What I want is to be able to find the information I need when I need it. MDPD does a poor job of that.

    You can get a heck of a lot more out of a well-designed data base than you can out of ad hoc, mostly untimely MCPD, at less cost, at far less disruption to your practice, and when you need the information. There are, apparently, conflicting studies but studies have shown that MCPD does not bring down negligence rates. A major evil of MCPD is that a lawyer can have her or his reputation, revenues and clients harmed because of a failure to meet an arbitrary 12 hours of CPD without there being the slightest evidence that the lawyer is anything other than competent, professional and decent. Indeed, lawyers who are sloppy or uncaring delegators of work can free up time to watch webinars (assuming they actually watch them with the sound up) but lawyers who are diligent, competent, professional, and decent and in high demand because of those qualities can find themselves lacking the time, especially as year end approaches, to watch webinars of only fortuitous relevance and thereby find themselves in the cross-hairs of bureaucratic cannon.

    We need a much better way to provide knowledge to our members as and when they need it, and without inhumanely splattering their reputations when there is no evidence of incompetence. Such a better way is easy to envision and can be created. We need only the will of the decision-makers to do so.

  5. While I support mandatory CPD, there are problems.

    For some lawyers come late December they realize they’re short on their professionalism hours so need to quickly find something that counts. Oh, yes, there’s a LSUC dealing with disabled clients recorded presentation that counts, and there are 4 parts, okay I’ll watch two and I’m good. Then for the substantive with more relaxed requirements for what counts, I’ll do a quick Google search to find some free or $25 webinar, regardless of subject or whether it has any relationship to what I practice.

    While it’s an important subject, this sort of last-minute finding CPD is not terribly useful. And the model of mandatory CPD tends to encourage this sort of last-minute behaviour. I’d actually be happier if LSUC had a mandatory professionalism seminar, offered both live and by webinar several times a year, that covered the most common problems with lawyers and their practices generally, and included a timed interactive quiz incorporated throughout or at the end.

  6. Bradley Wright

    By the way, many people including me do get something out of CPD, but the effort is all out of proportion to the benefits (mostly because of the timeliness/relevancy issue), and the potential harms out of not hitting 12 hours in a year are very much out of proportion. It also does not matter if you hit 18 hours for ten years in a row, and then only 10 this year. It may have been a year with, in your practice area, comparatively few developments, or you may have had to keep postponing because of work and other pressures only to run out of time in December. To be clobbered for the 10 with no credit for the prior additional 60 is not fair.

    The greatest benefits I have experienced out of CPD occurred when I was a presenter. Nothing teaches you something better than having to teach it to others. (Make the audience laugh; it’ll tell you if they are still awake.) Perhaps we need to make every member teach a course (no, of course not).

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