Friday, January 02, 2004


Minnesotan attorneys are required to take courses on "Elimination of Bias" to maintain their license to practice law. As reported recently by Overlawyered and in today's Power Line post (which contains the full text of today's Minneapolis Star Tribune article), a local attorney named Elliott Rothenberg has challenged the requirement on constitutional grounds.

When I took my last Elimination of Bias CLE (I guess I'm outing myself as a lawyer here--big surprise), the audience got in a fight with the panel. This made for a far more exciting seminar than the usual snooze-fest. The panelists had asked how an attorney should respond if a client demanded to be assigned a female (or African-American or white or male) attorney. The correct answer, apparently, was to lecture the client about bias and assign them whoever was available, regardless of the client's request. The lawyers in the audience thought this was unrealistic and the discussion got pretty rancorous.

But I come from an unusual position on this one: I don't understand why we need to take "continuing legal education" classes (aka "CLE's") in the first place.

Once you've been practicing a few years you already know enough in your field of practice to teach the classes yourself (I co-taught my first class in my first year of practice) and you shouldn't be practicing outside of your field anyway (a few measly CLE's don't suddenly make you a good lawyer in a new area of law). Improving the process of removing (or punishing) lawyers who practice in areas they aren't competent seems a much more effective method of protecting the public than simply requiring them to take classes (there's no requirement of which legal areas the classes must pertain to). Non-lawyers complain about things like greed, boorish behavior and obtuse writing, not lack of legal knowledge. Continuing legal education isn't going to stop lawyers from being greedy and acting badly, and will do little to make them write more clearly (losing a case because your brief was incoherent might at least start the ball rolling...). So the Elimination of Bias CLE requirement seems to me just a new species of stupidity, not a whole new outrage.

But if you assume that requiring continuing education of practicing lawyers makes for better lawyers (are there any empirical studies on this?), then I'm afraid it's not hard to also assume that educating lawyers to be unbigoted also makes for better lawyers. From the Star Tribune article (I haven't read the brief), Rothenberg is apparently just questioning the existence of the bias and attacking the ability of the classes to remedy the alleged situation. Given the assumptions made for the benefits of general CLE's, I don't see why the court is going to look more closely at the cause-and-effect features of elimination of bias CLE's, even if it had the power. Previous courts haven't.


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