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Monday, December 20, 2010

Surreal CLE moment: Can one get CLE credit in Illinois for auditing a class that one simultaneously teaches?

In Illinois, at least, one can get CLE credit for "Part-Time Teaching of Law Courses" at "an ABA-accredited law school" -- but only if one is a lawyer who is "not employed full-time by a law school." Illinois MCLE Board Rule 795(d)(6)(i). According to the same rule, "[f]ull-time law teachers who choose to maintain their licenses to practice law are fully subject to the MCLE requirements established herein, and may not earn any credits by their ordinary teaching assignments."

This rule barring "full-time law teachers" from counting their "ordinary teaching assignments" as continuing legal education might strike one as a bit peculiar. After all, how can something be continuously and legally educational when taught by a part-timer but not equally continuously and legally educational if taught by a full-time prawf? But the Illinois rules get downright surreal once one considers Illinois' CLE rule for auditing courses at ABA-accredited law schools. It turns out that, under Illinois MCLE Board Rule 795(d)(2), one can get CLE credit for"[a]ttendance at J.D. or graduate level law courses offered by American Bar Association (“ABA”) accredited law schools" even if the course is "not taken for law school credit towards a degree" but merely audited. (Rule 795(d)(2)(iv)). Moreover, there is no exception for "full-time law teachers" in this rule awarding CLE credit for auditing (as opposed to teaching) a law school course: Full-time profs who audit law school courses apparently are just as eligible for CLE credit as any other lawyer.

It turns out that I have fallen in arrears on my Illinois CLE obligation, because, as a "full-time law teacher," I cannot get credit under Rule 795(d)(6) for any of my "ordinary teaching assignments." (Who knew? Does any other state exclude prawfs from getting CLE credit for their own ordinary teaching duties?) So here's my question for you textualists out there: Can I get CLE credit for auditing my own courses that I taught while a full-time prof at Michigan and NYU? After all, I think that I was a model auditor of my own courses, attending every single session religiously, reading the material assigned pretty carefully, and participating actively in class discussion. I did not always take the examination that I wrote (although I usually prepared a model answer, albeit not under exam conditions) -- but I do not think that Michigan or NYU require auditors to take the exam. So, if I can get my past and present deans to provide some "written certification evincing that [I have] complied with requirements for the course and attended sufficient classes to justify the awarding of course credit if [I was] taking the course for credit," (Rule 795(d)(2)(v)), then am I in the clear with the Illinois CLE rules?

More seriously, what could possibly be the rational basis for barring full-time prawfs from getting CLE credit for "ordinary teaching assignments" when non-academics who co-teach or even audit the same courses can get full CLE credit? Is this asymmetrical treatment of academics and non-academics simply an expression of practitioners' and adjuncts' spite towards prawfs? Or is the idea that the auditors learn more from a law school course than prawf who actually teaches it?

Posted by Rick Hills on December 20, 2010 at 11:36 AM | Permalink

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The Bar makes a lot of money providing CLE. Isn't that explanation enough? In Florida, I receive some credit for teaching my regular courses, but I never know how much I will receive, and I have never been able to get all my credit simply from teaching, even if I taught several new courses. I will have to explore whether I can get credit for auditing classes, but I am not sure how my colleagues would reespond to my request to audit their courses. I really would like to audit Federal Courts, Insurance Law, and Administrative Law--three courses I should've taken in law school but didn't!

Posted by: Lyrissa | Dec 25, 2010 8:30:38 PM

Rick,

I can't offer perfectly rational explanations for what state bars do in the CLE regs, in large part because I've concluded that there's so much irrationality. But if the supposed "disjunction" can explain any of the irrationality in Illinois, it could be the assumption that on the whole practicing lawyers tend to audit the practical courses and on the whole professors tend to teach unpractical courses -- which, admittedly, would leave plenty of false positives (lawyer audits "law and post-modern social theory" and gets credit) and false negatives (professor teaches "drafting IP license agreements" but doesn't get credit, even when lawyer audits the same course and gets credit).

As I say, though, the Illinois decision, like so many state bar CLE decisions, could be driven by any number of rationales or none at all.

Posted by: John Steele | Dec 20, 2010 3:21:34 PM

I tend to agree with Rick's animus explanation, though with a rent-seeking nuance. The bar could have exempted all teaching from earning CLE credit, but that would have discouraged practicing lawyers from teaching CLE programs -- the bar would have had to pay cash (or more cash) to such lawyers. Giving them credit for teaching CLE courses was a cost-free approach for the bar to compensate lawyers for developing the CLE courses. But once the bar decided to grant credit for teaching CLE, that opened up a problem with regard to law professors. As Rick notes, if teaching law generally was open to credit, full-time profs would incur no cost (as we could just keep doing what we did and get CLE credit for it). So, to cure this perceived inequality, bar committees decided to exclude profs so that everyone "felt the pain."

There might also be an anti-competitive explanation in other states, though I don't think it explains Oregon's exclusion. The exclusion discourages law professors from becoming members of the bar and thereby competing with other lawyers in rendering legal services. In Oregon, however, there are only around 80 law professors in the entire state, so the pool of potential competitors is small. More importantly, the CLE exclusion hasn't deterred that many profs from joining the bar. I wonder, though, if the same is true in other states with larger numbers of law professors.

Rick, as for how law professors comply in Oregon, law school conferences and symposia are eligible for CLE credit so long as the organizer files the necessary paperwork (as the host law schools typically do so as to induce alumni and others to attend). Hence, law professors who attend their own law schools' conferences can get credit for it. That, plus a few free CLEs sponsored by the local bar associations, get most Oregon law professors through the requirements.

Finally, as a policy matter, I think the exclusion ill serves the bar in several respects. Obviously, law teaching is, by definition, "continuing legal education," and most law professors spend more time keeping abreast of new developments than the run-of-the-mill CLE speaker. At the same time, excluding profs costs the bar. The Oregon bar is one of the state's largest CLE providers. Its CLE income is undoubtedly substantial. (I assume the state action exception to the Sherman Act accounts for why, in those states in which the bar provides CLE courses, the adoption of CLE requirements doesn't violate antitrust rules). In any event, in excluding profs, the bar simply encourages profs to organize CLE courses of their own, which compete with the bar's. Moreover, I know several profs who refuse to do voluntary service to the bar (such as evaluating bar exam questions and answers or serving on bar committees) because of the CLE exclusion. There is undoubtedly a pareto-optimal bargain to be struck, but, as John notes, bureaucratic pathologies likely promise to keep the status quo in place.

Posted by: Norman Williams | Dec 20, 2010 1:34:33 PM

John Steele writes:

Perhaps some of the animus/rationale is a belief that what professors teach in the classroom isn't really what the practicing bar has a continuing need for. (I.e., the old notion of the "disjunction," etc.) I'm not agreeing with that, just wondering if perhaps that's the motivation.

I've no problem with a state's taking the view that law school courses are not "practical" enough to count towards CLE requirements. Illinois might rationally think that courses in, say, "Law and Post-Modern Social Theory" are not helpful for training practicing lawyers.

But then why should lawyers get credit for auditing those same impractical courses? The irrationality of the rule is not that the rule excludes law school courses: The irrationality is that the rule doesn't exclude such courses. Non-academic lawyers can get CLE create by auditing my class, but I cannot get credit for teaching it. That rule makes no sense if the goal is to insure that I am as well-educated as my students.

A very helpful Illinois MCLE Board employee, however, has just told me that, in her opinion, the rule was designed to insure that law profs did not get CLE credit "just for doing their job." If the point of the rule is simply to reduce my leisure time, then it is certainly likely to be effective. I have been told that I might be able to satisfy the CLE requirement by auditing my colleagues' classes. So my NYU colleagues can expect me to be sitting in on their courses soon. It will be a lot more interesting than studying for and taking the New York bar exam, and it will be fun to throw them off stride with questions.

Posted by: Rick Hills | Dec 20, 2010 1:33:05 PM

Rick, this is exactly why I am not a member of the Illinois bar. I am a member of the Texas bar, which grants me an exemption from CLE requirements for being a full-time professor. I do, however, have to satisfy 3 hours of ethics CLE, 1 hour of which may be self-study. As to why Illinois (which has only had mandatory CLE for a few years) does not exempt full-time law teachers, I would theorize revenue reasons.

Posted by: Christine Hurt | Dec 20, 2010 1:23:48 PM

I disagree with the Illinois approach. Perhaps some of the animus/rationale is a belief that what professors teach in the classroom isn't really what the practicing bar has a continuing need for. (I.e., the old notion of the "disjunction," etc.) I'm not agreeing with that, just wondering if perhaps that's the motivation. Btw, California gives CLE credit for classroom teaching.

On a larger issue, I've gotten down into the details of a lot of the states' CLE bureaucracies, and it's a mess. There's a lot of economic self-protection (because the state bars make a lot of revenue from CLE), a lot of useless make-work (to keep bar employees employed, I suppose), and a lot of irrational, crazy stuff that's hard to explain. I don't know if some enterprising student or prof wanted to take a critical look at CLE regulations, but there's a lot to criticize there.

Posted by: John Steele | Dec 20, 2010 12:38:40 PM

I believe the exclusion you mention is quite common, and I believe the purpose is to encourage law professors to teach CLE courses. (Since the law professor exclusion usually applies only to courses taught at law schools; law professors get credit for teaching a regular CLE.)

Posted by: WPB | Dec 20, 2010 12:23:48 PM

Upon reflection, here is my best guess at the underlying purpose of the rule: Lawyers resent how easy it is for full-time academics to satisfy CLE requirements. Hence, the odd little dig in the Illinois rules declaring that "[f]ull-time law teachers who choose to maintain their licenses to practice law are fully subject to the MCLE requirements established herein," followed by the non sequitur that such teachers "may not earn any credits by their ordinary teaching assignments." Why would full-time teachers not be "fully subject" to CLE requirements if they got CLE credit for doing the same educational work as part-time teachers? The answer is simply that it is easier for the law profs to do this educational work, because they do not have to take time off from their day job. This apparently tics off the practitioners.

So what do you do to keep up your Oregon bar membership, Norman? Do you have to make sure that you speak at CLE-worthy junkets -- ACS or Federalist Society panels and the like?

Posted by: Rick Hills | Dec 20, 2010 12:07:41 PM

Oregon likewise bars full-time professors from receiving CLE credit for courses taught. When I inquired about it, the bar official couldn't explain the basis for the exclusion and invited me to submit a proposal for a rule change. That suggestion went into the "life is too short for some things" category. I would be curious, however, what the general practice among the states is -- are Oregon and Illinois the outliers, or is New York?

Posted by: Norman Williams | Dec 20, 2010 11:54:38 AM

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