Yesterday, the Cardinal Newman Society website reported that a decision by the State Bar of Texas to decline mandatory continuing legal education (MCLE) accreditation to faith-based programming for lawyers drew the ire of the State Governor’s office. The state bar had, on a one-time basis, granted accreditation to such a programme, but refused to accredit any further events of a similar nature.
My last post of 2015 is not about law and religion, but something far more suited to this festive season: the role of self-interest in lawyers’ attendance at CLE programmes (known in Canada as CPD). After all, for those licensed in MCLE jurisdictions, at midnight tomorrow a handful among you may face administrative suspension for not having posted enough education credits with your law society or state bar.
Maybe it was not about religion
A few years ago, I tried to get professionalism and ethics accreditation from our law society for a segment of a bar association meeting in which I arranged for a professor in education to deliver a paper on lawyers’ cognitive acquisition of professional and ethical skills. I had previously written on the subject as part of a campaign to encourage lawyers to be more aware of ethics in their practices. The law society refused to accredit the lecture on the basis that teaching about teaching professionalism and legal ethics did not fit the criteria for teaching professionalism and legal ethics. I suppose one has to admire the metaphysical sophistication of the decision to decline accreditation on this basis. I threw my hands up and admitted defeat. I held the program anyway, sans accreditation. It was well attended, although as bar association council members they sort of had to be there.
Stepping into the topic from the Texas State Bar’s perspective, one wagers a similarly austere reading of the MCLE guidelines may have led the decision to decline accreditation to the St. Marys University program on Christian legal ethics. Interestingly, the argument that an attorney’s First Amendment rights would be impaired if he or she did not receive MCLE credits could be seen as pulling the rug from under the premise of St. Marys’ program, i.e. that law could involve factors such as the Catholic faith, i.e. outside rationality and self-interest. Modern Catholicism is all about choices, and indeed the story of Jesus’ life was also all about choices. If the promise of heaven or the threat of hell not be on the menu, would anyone attend on Sunday? Did the original Christians hold meetings despite persecution by Roman officials, out of promise of professional accreditation or a cheap meal? Acts of faith, axiomatically, are never safe.
THE PROOF of THE PUDDING, OR of THE LUNCH
Whatever one’s perspective on the debate, as lawyers it is hard for us to justify any stance in the absence of empirical evidence. Evidence, however, operates at a probability standard, which in both civil and criminal formulations imports faith. So will attorneys’ First Amendment rights to follow and express their religious convictions be affected by the Texas State Bar’s decision? There is a way to find out. The program organizers and the state bar could investigate interaction of faith and MCLE accreditation by agreeing to hold another one-time accredited program but giving the attendees the option of rejecting the accreditation out of protest – and see how many actually do that. One sees from the previous program that by renouncing the CLE credits they would be able to save the $40 registration fee, although they’d still have to pay $10 if they stay for lunch.
Were he alive today, Pascal would have something to say about the empirical results. MCLE attendance has always involved self-interest as well as professional motivation – otherwise it would not have been made mandatory. Pascal proved that Catholic doctrine and the psychological impact of faith also has this feature. In the St. Marys MCLE conundrum, the variables would give a researcher lots to play with:
X1 = Catholic attorneys
X2 = non-Catholic attorneys
X3 = attorneys whose prime motivation was the cheap lunch, not adherence to the Catholic faith
Y1 = those who pay for the MCLE Credits and accept them
Y2 = those who pay for MCLE Credits but renounce them on principle
Y3 = those who renounce the MCLE but whose principles are not so strong as to deter foregoing the $40 discount, and
Y4 and Y5 = those with similar motivations but are also persuaded to attend by the cheap lunch
My suspicion is that, with a large enough sample, one can develop differential equation relationships among these factors. What we learn from this could surpass the interest level of the First Amendment battle that the Texas Bar’s decision has spurred, at least to some including followers of this blog – whom I thank for their devotion and wish a very safe and happy new year.