The Debate Over Mandated Continuing Legal Education in Maryland

Hot Topic

Rule 1.1 of the Model Rules of Professional Conduct and Rule 19-301.1 of the Maryland Attorneys’ Rules of Professional Conduct require attorneys to “provide competent representation,” including legal knowledge and skills “reasonably necessary for the representation.”[1] The American Bar Association (“ABA”) urges states to adopt minimum continuing legal education (“CLE”) requirements and has provided the Model Rule for Minimum Continuing Legal Education as a model which jurisdictions may adopt.[2] The Model Rule includes fifteen CLE hours per year, including credits on ethics and professionalism, diversity and inclusion, and mental health and substance abuse.[3] While most states, in alignment with the ABA, require attorneys to complete CLE credits to maintain competence amidst a self-regulated profession, these requirements vary nationwide.[4] Maryland, however, is one of four states with no mandatory CLE requirement.[5]

In November 2022, the Supreme Court of Maryland asked Judge Stuart R. Berger to assemble and chair a work group to investigate the feasibility of adopting mandatory CLE in Maryland.[6] The work group comprised twenty-seven Maryland attorneys, judges, and leaders with various backgrounds and roles.[7] The subsequent report consisted of a series of recommendations, including support for a mandated minimum of twelve CLE hours for active Maryland attorneys, including: one hour of ethics and professional responsibility; one hour of diversity, equity, and inclusion (“DEI”); and one hour of mental health and substance abuse.[8]

Then, in September 2023, the Supreme Court of Maryland solicited nearly 200 comments within two months for the work group’s report and recommendations.[9]In December 2023, the Supreme Court of Maryland hosted a virtual forum regarding the report’s recommendations.[10] There, attorneys raised concerns regarding the DEI requirement, including political divisiveness or unsustainability as a DEI practice.[11] Attorneys also highlighted the lack of measurement for success,[12] such as increased competency and reduced grievances and misconduct, resulting from mandatory CLEs.[13] Finally, attorneys emphasized economic burdens and time constraints.[14] On the other hand, others found the twelve-hour requirement reasonable and an effective way to build awareness and promote access to justice.[15] Organizations also advocated for more accessible ways to meet CLE requirements, like pro bono or virtual learning.[16]

On March 27, 2024, the Supreme Court of Maryland hosted a virtual meeting discussing the adoption of mandatory CLE for attorneys licensed in Maryland.[17] By a single-vote margin, the court voted to continue consideration regarding the implementation of mandatory CLE.[18] Chief Justice Matthew J. Fader and Justices Michele D. Hotten, Brynja M. Booth, and Angela M. Eaves voted in favor of mandatory CLE, while Justices Shirley M. Watts, Steven B. Gould, and Jonathan Biran voted against.[19] Both Justices Watts and Biran noted preferences for voluntary CLE.[20] Justices Watts and Gould also noted financial costs and the absence of compelling evidence for the benefits of mandatory CLE.[21] The adoption of a CLE mandate in Maryland remains a highly debated issue.[22] Both Maryland attorneys and judges disagree on whether to implement and what to include in mandatory CLEs.[23] While these issues remain unresolved, as conversations continue, Maryland attorneys must still maintain the requisite knowledge and skills to meet professional competence.[24]

kakaotalk_20230906_151530726-1-1

Jessica Kweon is a third-year law student at the University of Baltimore School of Law and an articles editor for Law Forum. She received her Bachelor of Arts in Psychology and minors in Biology and Writing from the University of Maryland, Baltimore County. Jessica has interned for the Honorable Judge Douglas R. M. Nazarian of the Appellate Court of Maryland, the Honorable Judge Mary M. Kramer of the Circuit Court for Howard County, and the Honorable Judge Catherine Chen of the District Court for Baltimore City. In law school, Jessica is also a member of the Jeffrey G. Miller National Environmental Law Moot Court team and Vice President of the Asian Pacific American Law Student Association

1 MODEL RULES OF PROF. CONDUCT r. 1.1 (AM. BAR ASS’N 2019); Md. Rule 19-301.1 [MARPC 1.1].

2 ABA MCLE Model Rule Implementation Resources, ABA, https://www.americanbar.org/events- cle/mcle/modelrule/ (last visited Apr. 7, 2024).

3 Id.

4 L. Paige Whitaker, CONG. RSCH. SERV., LSB10278, CONTINUING LEGAL EDUCATION: WHAT’S REQUIRED AND OPPORTUNITIES FOR MEMBERS AND STAFF TO SATISFY THOSE REQUIREMENTS 1 (2019),

https://crsreports.congress.gov/product/pdf/LSB/LSB10278.

5 Mandatory CLE, ABA, https://www.americanbar.org/events-cle/mcle/#:~:text=AK%2C%20AL%2C%20AZ%2C%20AR,%2C%20RI%2C%20WV%20and%20WI. (last visited Apr. 7, 2024).

6 A Report on Mandatory CLE in Maryland, MD. CTS., https://www.courts.state.md.us/lawyers/cle (last visited Apr. 7, 2024).

7 Hon. Stuart R. Berger & Zachary Babo, WORKGROUP TO STUDY MANDATORY CONTINUING LEGAL EDUCATION (“MCLE”) IN MARYLAND: FINAL REPORT AND RECOMMENDATIONS 1 (June 16, 2023), https://www.mdcourts.gov/sites/default/files/import/lawyers/pdfs/mclereport.pdf.

8 A Report on Mandatory CLE in Maryland, supra note 6.

9 Id.; Rachel Konieczny, Solo Practitioners, Small Firms Oppose Proposed Mandatory CLE, DAILY REC. (Dec. 7, 2023), https://thedailyrecord.com/2023/12/07/solo-practitioners-small-firms-oppose- proposed-mandatory-cle/.

10 Supreme Court Special Events Webcast Archive, MD. CTS., https://www.mdcourts.gov/coappeals/webcasts/specialevents?_gl=1*1fcmh68*_ga*MTEzMDI3NDk1Mi 4xNjczNDU2MzYx*_ga_6TNWH2LH1Z*MTcxMjU1MTIwNi40NS4xLjE3MTI1NTEyMzUuMzEuMC 4w (last visited Apr. 7, 2024).

11 Rachel Konieczny, DEI Education Debated in Maryland Supreme Court Forum on Proposed Mandatory CLE, DAILY REC. (Dec. 14, 2023), https://thedailyrecord.com/2023/12/14/maryland- supreme-court-hears-comments-on-proposed-mandatory-cle/.

12 Id.

13 Konieczny, supra note 9.

14 Konieczny, supra note 11.

15 Id.

16 Id.

17 A Report on Mandatory CLE in Maryland, supra note 6.

18 Rachel Konieczny, Maryland Supreme Court Narrowly Votes to Continue Deliberations on CLE for Attorneys, DAILY REC. (Mar. 27, 2024), https://thedailyrecord.com/2024/03/27/md-supreme-court- narrowly-votes-to-continue-cle deliberations/#:~:text=Maryland%20Supreme%20Court%20narrowly%20votes%20to%20continue%20de liberations%20on%20CLE%20for%20attorneys,- Rachel%20Konieczny%2F%2F&text=By%20a%20single%2Dvote%20margin,legal%20education%20fo r%20Maryland%20attorneys.

19 Supreme Court Special Events Webcast Archive, supra note 10.