Some people think that compulsory education of adults is ineffectual. Without a desire to learn, adults find ways to go through the motions. How many adult employees have clicked through a mandatory PowerPoint presentation just to get to the completion certificate?
I recently tested whether charges of attorney ethical misconduct are reduced when a state increases the number of mandatory credit-hours of continuing legal education (CLE) in ethics. The study finds that a one-hour increase reduces charges by 10.50%. (Charges are tallied when a disciplinary agency or appropriate authority determines that there is probable cause that a violation of a professional responsibility rule has occurred, and then files a document, pleading, or notice with the designated adjudicatory tribunal, e.g., a Disciplinary Board.)
The results, which are forthcoming in the peer-reviewed journal Review of Law and Economics, are robust to various econometric approaches, and even though they require making several assumptions, they suggest that attorneys respond well to ethics training.
For instance, Nebraska increased its annual requirement of CLE in ethics by two hours in 2012. The following year, charges of ethical misconduct dropped more than 40% despite the fact that the number of Nebraskan attorneys increased by 6.5%. Similar patterns could be observed in Alaska, Delaware, Illinois, Iowa, North Carolina, Utah, and Wyoming. (Other states did not change their training requirements, so in many cases, impacts could not be seen.)
The data ranges from 2007-2014 for each of the 50 states (plus D.C.) and comes from the ABA’s Center of Professional Responsibility, which carries out an annual survey on lawyer discipline systems, and the NCBE and ABA Section on Legal Education, which publishes information on state-by-state MCLE requirements.
The challenge for a study like mine is that changes to ethics training requirements are never random, and as a result, the statistics can be misleading. States that are having problems with ethical misconduct may respond with stricter training requirements. If that’s the case, then changes in levels of misconduct causes changes to mandatory training, and not the other way around.
Despite the fact that the empirical results must be taken with a grain of salt, they hold up surprisingly well under scrutiny. For instance, an increase or decrease in the number of attorneys from one year to the next would surely impact the number of charges of ethical misconduct, but the study holds the number of attorneys “constant” (by means of regression analysis) and still finds that training matters.
Similarly, it holds constant the number of charges brought in the previous year since those prior charges surely predict the level of charges brought in the current year. The study subjects the results to other robustness checks, and each time, the results stubbornly show a connection between ethics training and ethical conduct.
Attorneys Need to Learn Specific Ethics Rules
Why would attorneys respond well to ethics training? The most obvious reason is that we want to be ethical in the first place, but we need to learn the specific rules. The MPRE tests general rules, and not the local nuances relevant to a particular domain. By contrast, CLE providers can tailor course contents to attorneys facing a distinct set of ethical issues in their area of practice.
Attorneys arrive at these types of course offerings presumably with questions, or at least an elevated curiosity, and could even be seeking answers. General CLE courses in ethics may have some impact, too. Even if we are going through the motions, sharpened requirements for ethics training can signal that a jurisdiction cares about ethical conduct. Sitting through a class serves as a reminder.
While it is nearly certain that some attorneys cannot be dissuaded from violating professional responsibility rules through CLE training, my study shows that training has some non-negligible, aggregate impact. Future study might examine CLE offerings in detail and attempt to identify effective course features.
Recently, a lot of attention has focused on how the course is taught. Should a course be offered online or in person? Does class size matter? Additional analysis of what is being taught may provide yet more answers. How many courses focus on specific applications to a practice area? Do courses discuss recent changes to local professional responsibility rules that may be a source of current confusion?
A deeper understanding of the relationship between course features and attorney misconduct can help strengthen the courses themselves, and perhaps reduce instances of ethical misconduct even further.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Frank Fagan is Associate Professor of Law at EDHEC Business School and a member of the Legal EDHEC Research Center. He specializes in economic analysis of law and empirical legal studies.
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