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.