Maryland is one of only four holdout states and the District of Columbia that do not require continuing legal education (CLE) for lawyers. However, Maryland likely will not be an outlier much longer. As eloquently reported by Judge Stuart R. Berger and his work group (June 16, 2023 Final Report and Recommendations of the Workgroup to Study Mandatory Continuing Legal Education ("MCLE") in Maryland, there are many good reasons to require mandatory CLE.
Having read the report, I am convinced that the era of mandatory Maryland CLE is near.
Mandatory CLE helps the legal community. Myriad research and articles show declining public confidence in lawyers. For example, a Feb. 17, 2023, Carol Funk article published by the ABA titled "Public Confidence and the Courts: Pillars of the Rule of Law" identified a lack of public confidence in the court system with a theme about what can be done to improve public perception.
Similarly, on Aug. 17, 2022, Rassmussen Reports released survey results showing that only 35% of American adults trust lawyers while 32% do not, and another 33% are not sure. These staggering statistics show that we, as lawyers, have a long way to go.
Mandatory CLE requirements provide one way for lawyers to improve public perception of our profession. (See Section II of the work group report.) The report represented the culmination of months of research by Berger and his 27-member team formed at the request of the Maryland Supreme Court to study whether Maryland should adopt MCLE requirements and, if so, which requirements. The Maryland Supreme Court of Maryland has solicited comments from the bar.
I recommend that all Maryland lawyers read the report. I hope that, as stakeholders, all Maryland lawyers provide comments to the Supreme Court before the Nov. 10, 2023 deadline. You can find the report, the work group's recommendations and the link for comments on the Maryland Courts' website under the "LAWYERS" tab.
I interpret the Maryland Attorneys' Rules of Professional Conduct as supporting mandatory CLE. In fact, the first rule, Md. Rule 19-301.1 Competence, reads, "An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
Attorneys must keep up with developments in the practice of law. Comment 6, "Maintaining Competence" elaborates that, to "maintain the requisite knowledge and skill," lawyers must "keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the attorney is subject."
Similarly, Comment 5, entitled "Thoroughness and Preparation" explains that competent handling of a matter includes analyzing the factual and legal elements of the problem, using methods and procedures meeting the standards of competent practitioners, and preparing adequately. The required level of attention and preparation is determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than less complex matters.
Maryland attorneys must stay current on new case law, rules, statutes, technology, and for those of us in private practice, firm-management issues. A failure to be aware of new rules, statutes or case law that impact a matter can be grounds for discipline.
Additionally, being unaware or unable to use technology may lead to discipline or other problems. Failure to have secure files could result in a violation of Rule 1.6 and Rule 1.1 or cause disclosure of protected Personal Health Information. A lawyer who cannot implement proper case management techniques or software can miss deadlines, be unable to file electronically, or have an accounting error resulting in a Rule 1.15 violation.
Time and again, in cases too numerous to cite, these types of violations have been found as violations of Rule 1.1.
I must admit here that I am biased towards MCLE. As a member of the Virginia bar since 2000, I've completed at least 12 hours a year for 23 years. I have grown to look forward to CLEs. I present at least yearly, often because of my active membership in the District of Columbia Defense Lawyers' Association.
I enjoy the camaraderie of the CLEs. I am impressed by the level of knowledge and the presenters' efforts to make programs meaningful. That the seminars are attended by many lawyers who do not have mandatory CLE speaks volumes.
At the end of the day, what is most important to me is that I have found a group of lawyers with similar practices who want to learn and strategize together. That is the true benefit of a top-notch CLE program. I am confident that Maryland's program, if implemented, will better all of us.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His column in The Daily Record appears on the first Thursday of every month. He can be reached at email@example.com.
This article originally appeared in The Daily Record on October 5, 2023.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.