New Jersey Contemplates Mandatory Continuing Legal Education

Saturday, December 1, 2007 - 00:00
David L. Harris

Editor : Would each of you gentlemen tell our readers something about your professional experience?

Harris: I am a trial attorney, and I try commercial and intellectual property cases. I have been at Lowenstein Sandler for over 28 years, and I am currently the chair of the litigation department.

Crowley: I have been at Johnson & Johnson for 25 years. Prior to that I spent six years in New York, first at White & Case and then at Cravath Swaine & Moore. Currently I oversee the J&J Law School Online, which is an e-learning facility run by our law department for employee compliance training. I also serve as the company's U.S. environmental law counsel.

Editor: You have both been involved in the discussions regarding mandatory continuing legal education in New Jersey. What is the origin of this issue?

Crowley: The Supreme Court of New Jersey formed an ad hoc committee to look into the advisability of having mandatory legal education in addition to, or in lieu of, the skills and methods course provided for newly admitted attorneys in our state. Most states have some sort of mandatory CLE, and it is the exception not to have a mandatory requirement. The committee has held a number of hearings.

Editor: Mr. Crowley, in-house counsel in New Jersey fall into two basic categories, those with limited licenses and those with plenary licenses. Where is the discussion going on these two groups?

Crowley: The two categories of in-house counsel in New Jersey are those with a full plenary license and those with a limited in-house license for counsel who provide their legal services solely to their employers. In the latter case, basic competency and other factors of bar membership are governed by the home jurisdiction. These individuals are not permitted to appear before the New Jersey courts other than pro hac vice or in association with an attorney fully licensed in the state.

One of the reasons that there was no overt regulation until recently of in-house counsel admitted in jurisdictions other than New Jersey was the recognition of the New Jersey Supreme Court, supported by an ethics opinion in 1975, that corporations tend to be sophisticated buyers of legal services and are better able than the public at large to assess the character and quality of such services. In 2003, however, Rule 1:27-2 was enacted to provide for the limited in-house license with respect to lawyers admitted to practice only in jurisdictions outside New Jersey.

I have suggested to the ad hoc committee that in-house lawyers, whether holding a plenary license or a limited license, should not have to be held to the same mandatory CLE requirement as lawyers who hold themselves out to the public at large.

Harris: I think that is a reasoned basis to distinguish between in-house counsel and lawyers in private practice. At the same time, I think that mandatory CLE is not designed so much to protect the public as to ensure that those who are practicing in the state, and especially those giving advice on New Jersey law, are licensed to do so. In all states, the license functions as a way to control the number of practitioners, even as a barrier to entry. In New Jersey, with a great many lawyers, the barrier to entry is high, and, as a result, New Jersey does not have reciprocity with any other states on admission of attorneys. If New Jersey is going to continue that policy - that in order to be admitted one must pass the bar exam - then there is an argument for making it consistent through all ranks of attorneys. On the other hand, the distinction between in-house counsel and attorneys in private practice is a valid one. And, of course, the lack of reciprocity with other states, which means that New Jersey lawyers must pass the bar exam in those states if they are to practice there, is an argument for taking a long, hard look at the current policy in New Jersey.

I am in favor of reciprocity. I do not believe that New Jersey lawyers have anything to fear from lawyers from other jurisdictions being able to waive into practice in New Jersey. Such a step would enable our attorneys to waive into reciprocal jurisdictions.

Editor: I recall going through the skills and methods program following the New Jersey bar exam some 35 years ago. If mandatory CLE is adopted, what happens to this program?

Crowley: The ad hoc committee is discussing this issue at some length. Should skills and methods be superseded? Should it be incorporated into the mandatory CLE program? From the standpoint of the in-house practitioner - and we tend to hire attorneys with several years experience - the issue is really moot because, even if they have been admitted in New Jersey, these attorneys are typically beyond the range of the skills and methods program.

Harris: My own view is that the skills and methods program has outlived its usefulness. The basic principle of the program is that every attorney should have some familiarity with processes across a wide range of legal areas. The exercise is simplistic, however, and I think it is a waste of time for experienced attorneys coming into the state and passing the bar exam to be required to take the skills and methods course. If New Jersey is going to have mandatory CLE, then skills and methods should be eliminated.

Editor: Do you think there should be different mandatory CLE requirements for young lawyers and seasoned practitioners?

Harris: Well, certainly people who are newly admitted to the bar - whether recent law graduates or experienced attorneys - should be expected to be exposed to an intense CLE experience. I am a partner in a very large New Jersey firm, and we have training programs - which are mandatory - for our associates across a wide range of legal disciplines. The extent to which such internal programs are entitled to CLE credit is also something requiring discussion. Most New Jersey attorneys do not have access to such internal resources, however, which means that mandatory CLE is a very important consideration for the vast majority of our state's attorneys.

Crowley: David raises a couple of interesting points. The New Jersey Corporate Counsel Association takes no position on whether mandatory CLE should be required, but if it is required we want to see it made as productive as possible for our members. For instance, having our company patent attorneys learn how to draft a will or file a complaint would not be very helpful. We are very interested, however, in having them add to the expertise they bring to their practice in our department.

We also conduct courses for our law department attorneys, and we think those courses should be recognized for CLE credit. These courses, we believe, enhance the ability of our attorneys to practice law and have a positive effect on the quality of the bar. So, we'd like to assure that appropriate courses given within law departments qualify for CLE credit.

Editor: Can mandatory CLE be used to promote pro bono initiatives?

Crowley: My sense is that a mandatory CLE program that attempts to do too many things risks losing its focus, which should be on enhancing the education of lawyers and the competency of the bar.

Harris: I do a great deal of pro bono work, and I have always been opposed to mandatory pro bono. There are plenty of voluntary programs that might train attorneys to handle things outside of their practice areas - say, adoption procedures or non-profit organization corporate governance - but I do not think it would be productive to make pro bono a component of any mandatory CLE requirement.

Editor: Because CLE has been around for many years, it is a full-scale industry today and expensive. Has any thought been given as to the financial burden this imposes, particularly younger lawyers?

Crowley: That issue is under review by the ad hoc committee. Lawyers in small firms and solo practitioners are in a different position from those in the large firms or in corporate law departments, and there is a general recognition that mandatory CLE should not represent an unreasonable burden for them. I should point out that, typically, programs offered by the various bar associations and by the New Jersey Corporate Counsel Association and the Association of Corporate Counsel, its national parent, tend to be modest in price.

Editor: Is the licensing of CLE providers under discussion?

Crowley: I have raised the issue of licensing with the ad hoc committee, and my view is to try to make it as simple as possible and to recognize that there are a great many providers which have been engaged in this activity for years, including the large law firms, entities like NJCCA, our sister chapter, the Delaware Valley Association of Corporate Counsel, the Association of Corporate Counsel, the New Jersey State Bar Association, as well as some large out-of-state providers like the Practising Law Institute. There is also a general recognition that competition will serve to enhance the quality of the educational materials and constrain the pricing of these offerings, something that the licensure of only a few providers would inhibit.

Harris: When Lowenstein Sandler applies for CLE credit for our in-house programs, we are required to submit the materials in advance of the program. I think it is important to determine whether the provider has a library of programs and a group of presenters with appropriate qualifications. Of course, organizations with years of experience in this field are usually able to meet this type of requirement with ease.

Editor: To what extent should credit hours from other jurisdictions be allocated towards fulfilling mandatory CLE in New Jersey?

Crowley: I certainly hope New Jersey can find a way to have reciprocity with other states on CLE credit. One way of doing so is to establish some jointly-agreed standards for CLE courses and then to accept the certification of other jurisdictions with respect to a provider's having met such certification. I think this would be a fairly simple feature to implement.

Editor: What steps have to be taken before mandatory CLE in New Jersey is a reality?

Crowley: The ad hoc committee intends to issue its draft report in June of 2008. If a mandatory CLE program is going to be effective, its administration must be efficient. That discussion is going to take place over the next few months.

Let me add that New Jersey is not acting in a vacuum here. The state is one of the last jurisdictions to consider mandatory CLE. In order to ease the potential burden on lawyers who are admitted in multiple jurisdictions, it would be a good idea to spend some time in considering the potential opportunities for conflict as well as for collaboration. If we get this right, practitioners are going to regard mandatory CLE as a positive benefit - something that serves to enhance their practice capabilities - not as either an undue burden or something that involves simply checking the box as part of the price of admission to the practice of law in New Jersey.

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