Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

A Time of Opportunity and Change

In his new book Glass Half Full: The Decline and Rebirth of the Legal Profession (Oxford University Press 2015)—an excerpt of which appears in this issue of Bench & Bar—Benjamin H. Barton outlines the enormous challenges facing the legal profession. Law schools are churning out too many graduates with dim job prospects. Law firms’ fee structures are increasingly resisted by cost-conscious clients. Modern technology can now assist, or in some cases supplant, lawyers in routine legal tasks like drafting wills and simple contracts. Bleak as developments like this may sound, Barton sees cause for optimism, predicting that lawyerly creativity and entrepreneurialism will save the profession.

The significant changes in the legal profession outlined in Barton’s book are also affecting bar associations. Membership has been declining as fewer lawyers enter the profession, more lawyers retire, and changing economics make it more difficult for our members to make a living. In the foreword to a recently released book, The Relevant Lawyer: Reimagining the Future of the Legal Profession, ABA President William C. Hubbard makes the case for change at bar associations: “There are no easy answers for the many difficult questions confronting the bar in this rapidly evolving legal marketplace. Our natural and understandable inclination is to preserve all that has served our profession so well for so long…. [But] we cannot ignore the evidence that the public expects us to deliver legal services in the most accessible, effective, and efficient way. We must acknowledge this expectation and work to shape the changes ahead, not wait for them to happen to us.”

Challenges Facing the MSBA

Successfully navigating the state bar’s future course requires close consideration of the trends and challenges that are shaping a law practice landscape very different from last century’s. The percentage of lawyers who are MSBA members has slipped from 70 percent in 1997 to around 60 percent today. More significantly, the MSBA has lost 1,191 members, or 7.3 percent, since 2011. If that trend continues, total attorney membership could drop between 9 to 16 percent by 2020. There are four identifiable reasons for the decline in membership.

  • Fewer lawyers entering the profession. There has been a 43 percent drop in Minnesota law school enrollment since 2005. In fact, the number of individuals enrolling in law schools is the lowest it has been since the mid-1970s.
  • More lawyers retiring. Sixteen percent of our members have been in practice more than 35 years. These baby boom lawyers will be retiring in record numbers over the next couple of decades. Traditionally our members (including past presidents) don’t renew their membership upon retirement.
  • Fewer lawyers in private practice. The ABA’s groundbreaking “After the JD” study, which is following a cohort of lawyers from the class that passed the bar in 2000, showed that the percentage of those attorneys engaged in private practice decreased from 68.6 percent in 2003 to 44.1 percent in 2012. Also, more law school graduates are working in the business sector, with 27.7 of respondents working in the business sector in 2012 compared to 8.4 percent in 2003. These trends are important for bar membership, because private practice lawyers are far more likely to join the bar than are lawyers in companies and government.
  • Changing economics. The Great Recession and advances in technology have accelerated the pressure on lawyers to perform more services for much less compensation. Barton aptly describes the challenge: “Between technology, outsourcing, the flood of new law graduates, and the displaced lawyers now willing/forced to work for lower salaries, customers will suddenly (and for the first time in recent history) be paying much less for legal services.”
Opportunities at the MSBA

There are opportunities for the MSBA to adapt to this disrupted legal marketplace, if the association boldly embraces change—now.

  • Working collaboratively with district bars. Since last fall the presidents, presidents-elect and executive directors of the MSBA (myself, Mike Unger and Tim Groshens), HCBA (Tim Nelson, Kim Lowe and Mary Margaret Zindren), and RCBA (Tom Plunkett, Kelly Olmsted and Cheryl Dalby) have met regularly to address membership issues. The result is an agreement to share “backroom” functions (e.g. human resources, finance, technology support and maintenance, association management systems) to reduce costs and improve the quality of services to our members. The expected savings of $340,000 per year by 2020 will help offset lost revenue from declining membership. The efforts to reach this agreement demonstrate greater collaboration among the state and metro bars than ever before, a harbinger of even better collaboration to come.

    To underscore the need for collaboration, the MSBA hosted an April 24 workshop of the MSBA Council, the governing boards of the HCBA and RCBA, and the presidents of the other 19 district bar associations. Association expert and author Mary Byers led this unprecedented gathering of bar leadership and urged each bar association to embrace change and alter their traditional approach to association management in order to remain relevant to members.

  • Addressing challenges in legal education and the practice of law.
    To address the shifting demographics of the state bar (more diverse and younger), the association must respond with a change in services to new lawyers and in access to those services. To help address what’s needed, the association will rely on reports from two task forces launched over a year ago: one addressing the future of legal education, and the other challenges to the practice of law. Both task forces will present their recommendations at the upcoming MSBA Assembly on June 26.
  • Building communities of small firms. The MSBA is halfway through a three-year initiative aimed at increasing association value to our solo and small firm members. The association recently launched two new blogs. One of them, the Small Firm Soapbox, features posts by MSBA members writing about the challenges facing solo and small firm practitioners. The other is practiceblawg, a blog dedicated to helping members get the most out of MSBA products and services as they work to grow their practices.  Earlier this year the MSBA began a pilot program that enables members practicing in solo and small firms to connect with similarly situated colleagues in “cohorts” to share practical information in areas of marketing, virtual law practice, family law, document assembly, and accounting. In my first President’s Page last summer, I spoke of an association stretched too thin and of the need to focus our efforts on what we do best. The solo and small firm initiative is a key way to serve an important segment of our membership.
  • Attracting new lawyers. In previous columns I have spoken about the need to find better ways to involve new lawyers in bar activities and provide training to help them participate. Our New Lawyer Section provides participation opportunities, but it can also isolate young members from the rest of the association. Notwithstanding young lawyers’ heavy technology habit, bar associations are well-positioned to fill a basic need to belong. They must recognize that members hunger for an increased sense of community, both on- and off-line. American Society of Association Executives research has found that potential association members are drawn as much by a desire to serve the common good as an interest in personal benefits.
  • Preserving professionalism. Professionalism has always been at the core of what it means to be a lawyer. In the altered legal landscape of the twenty-first century it may become the key to the bar’s survival. A strong sense of professionalism helps to reinforce the bar’s wellspring ethic of service to others. It will also help our young lawyers distinguish themselves and ultimately succeed in this constantly changing practice environment. No amount of online services and bar management tools is as important to the survival of the next generation of lawyers as a strong sense of how lawyers should behave at their best.
  • Promoting diversity and inclusion. The next generation bar will be a diverse bar. A major focus this past bar year has been to support the work of Minnesota’s affinity bar associations and collect data on lawyer demographics in the areas of gender, race/ethnicity, sexual orientation, and disability. We hope to gain insight into the demographic composition of our membership to better inform future policy decisions and allocate our limited resources to improve diversity within the MSBA.
Overcoming Resistance to Change

In Glass Half Full, Barton talks about “pockets of the profession that will refuse to change.” He predicts that “those lawyers and law firms will likely fail.” A key to the success of future bar associations will be their willingness to embrace change. As Paul A. Haskins wrote in
The Relevant Lawyer, “Today’s bar associations play a vital role in the legal landscape and in American society. There is an emerging consensus that their willingness to overcome resistance to change and to open the door to new voices, new ideas, and new directions will be key to bar associations’ effectiveness, and thus to preserving their prominent and invaluable role in American life.”

Glass Half Full closes on an optimistic note for the most basic reason: The American legal profession has faced much worse and come roaring back.

“A brief history of other downturns demonstrates the extraordinary resilience of the American lawyer. Jacksonian democracy explicitly attempted to break the profession and failed. Lawyers resuscitated bar associations and the industrial revolution created more legal work than lawyers could handle. The Depression presented a much starker collapse in the demand for legal services and lawyer earnings, and post-World War II saw a boom for lawyers that lasted 60 years for Big Law and 30 years for the profession as a whole. De Tocqueville had it right in the 1830s: for better or worse lawyers are part of the DNA of this country.  Sharp-elbowed and ambitious, tomorrow’s lawyers will find a way to overcome and eventually to triumph. They have before. They will again.”

Like Barton, I take the long view and see great cause for optimism in the future of the Minnesota State Bar Association. But we must act boldly and embrace change now. Our members, and the public they serve, deserve nothing less.

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Richard H. Kyle Jr.

Richard H. Kyle Jr. was the 2014-15 president of the Minnesota State Bar Association. A shareholder with Fredrikson & Byron PA in Minneapolis, he is a criminal defense lawyer who has practiced law in both solo and large firm settings since being admitted to the Minnesota Bar in 1990.