CBA Nov.-Dec. 2020
introduce me to a recently installed justice of the Illinois Supreme Court. Escorting me into his presence, the member said to the judge, “I want to introduce you to the man responsible for delaying the introduc- tion of MCLE for three years.” Though MCLE has been in effect for many years, my sentiments on the subject have only been confirmed. MCLE is an anti-competitive device and should be abolished in favor of a return to voluntary means, including relevant quality CLE courses available. The structure of the CLE programs makes clear that increasing lawyers’ breadth of knowledge is at best an inci- dental benefit. No tests are given. The only enforcement is to be certain the lawyer pays. Though the purpose of MCLE was in theory to increase the competence of attorneys, this has not been (and prob- ably cannot be) measured. But what has increased is the cottage industry that sup- ports MCLE, with millions of client dollars being diverted to providers. Perhaps most importantly, compulsory education is not effective, especially for adults. People learn when they are curious and invested in their own improvement. On the one hand, the physical location of attorneys’ offices has greatly expanded sinceMCLEwas introduced. On the other, technical devices have enabled attorneys to attend CLE programs remotely--although whether remote participation is sufficiently equivalent to personal attendance is hardly doubt free. The subject matter of MCLE programs offered is largely confined to personal injury and certain probate and real estate fields. A lawyer of great integrity and ability whom I knew practiced exclusively before the U.S. Department of Agriculture: Neither the CBA nor the ISBA ever offered even a single course to the substantive or procedural aspects of his practice. Exotic niches of practice involving specialized knowledge are beyond the purview of the programs that are, or practicably could be, offered to the bar generally. Illinois Supreme Court Rule 791(a) (7) permits “temporary” exemptions by the MCLE board “[i]n rare cases, upon a clear showing of good cause.” It is not clear
whether the public (or opposing counsel) is advised of such exemptions; the ARDC’s website, for example, does not appear to have a section devoted to the subject. It is proposed that all the exemptions should be publicly announced. Though other objections exist as well, this discussion is not intended to sug- gest that CLE programs do not provide benefits, but the bar should not pretend that these are universally beneficial. They may instead tend to distribute benefits and impose costs in irrational ways for the morally wrongful and irrational purpose of limiting competition and providing and granting favors. The CBA When I became a CBA member in the early 1950s, its structure reflected society’s structure, including its built-in affinities, hostilities, and attitudes. However, the Depression, World War II, and the result- ing shifts, dislocations, and changes caused the emergence of elites and successes among groups formerly depressed, disad- vantaged, and foreclosed from avenues of wealth and prestige that were earlier avail- able to and enjoyed by classes, groups, and individuals who were members of more favored groups. The struggle to achieve minority racial membership in the CBA, already discussed, is one example of the evolution of policy and practice changes resulting from liberalization of attitudes. When the battle to admit Black mem- bers to the CBA had been won, the next memorable struggle was with the CBA committees – their role, structure, and purpose. In general, the committees consisted of “Old Guard” celebrities with strong “maintain the status quo ” attitudes. Younger members, myself included, peti- tioned the Board of Managers to open the membership of the committees. Over the existing membership’s fierce objections, the Board did so. But Old Guard resistance continued: for example, the existing Civil Practice Committee designated itself as the “Central Section,” assigned the remaining members to four “numbered sections,” used the numbered sections as law clerks, and reserved for itself the right to decide the committee’s position. The petitioners
who had brought the original petition for change again complained to the Board, which summarily granted the complain- ants’ requested relief, and the group was thereafter reorganized to provide all its members with full committee status. The focus of the committees has diminished, however. The general rule prevailing until relatively recently was that a committee member who failed to attend meetings during the committee year would be dropped. But the CBA has adopted a general policy from which some committees are exempted of deeming any attorney who had ever been on the com- mittee’s roster to remain a member unless he or she affirmatively sought resignation. This has the effect of disempowering the membership in favor of rule by the ukase of a self-perpetuating bar aristocracy. It was also provided that any member could attend the meeting of any commit- tee, but apparently left unclear whether a non-member had the right to vote. Thus, the Civil Practice Committee now has roughly 375 members; attendance at its meetings varies from 3 or 4 to perhaps 20, and efforts are made to pass off the results as that of the whole committee. Since I served the longest time on that commit- tee and chaired it for some terms, I know that names on the committee membership list include persons who never attended or attended at most one or two meetings. Other than substituting an effective source of informed and knowledgeable views that do or might dilute the influence of a committee, it is difficult to think of a reason, let alone a justification for the current CBA policy. Removing, and thus defanging the power and function of com- mittees by attorneys, is not only an abuse of but also a threat to the legal profession. Conclusion Many more illustrations of practices and attitudes functioning to thwart even- handed justice could be cited. Passive acceptance of the status quo will persist in the absence of continuing vigilance.
Jack Joseph has been a member of the CBA for 68 years and counting.
CBA RECORD 33
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