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

Cases of Controversy

“Trying to be relevant to the challenging issues of the day is one way that our organization can offer greater value to our members. Simply ‘playing
it safe’ does not.”

In my first column I addressed the importance of the bar’s role in advocating for the profession. Before that article went to press, I was copied on an emailed resignation by a longtime bar member who complained that the bar had veered from its core mission over several years, and that he thought we had been taking positions that were politically or ideologically based. He wrote that he would terminate his membership to avoid supporting positions he thought inappropriate for the bar to address. Fortunately this is an infrequent occurrence, and an uncommon complaint, but it is still one worth taking seriously.

This particular writer seemed to think MSBA was “too liberal.”  Although there were no particulars offered, I did find that concern ironic since it came not long after we were thrilled to host an event involving Justice Scalia. While the Justice would certainly shun an ideological label, I think it is fair to say he is typically not portrayed in the media as a “liberal.” If nothing else, I think this irony reflects an example of the difficulties of pleasing everyone. It also highlights the dangers in seeking to be timely and relevant by offering controversial programming and speakers.

While we could adopt a “safe” approach and avoid all controversy, I think that would be an overreaction to such criticism. Trying to be relevant to the challenging issues of the day is one way that our organization can offer greater value to our members. Simply “playing it safe” does not. But this issue is a cautionary tale that requires us to think carefully about any forays into public policy issues. Our approach must reflect true issues of law or justice, which are natural for the bar to address. The member’s criticism is a reminder that we must be careful when we attempt to speak for the profession.  This is not a role to take lightly.

If we are to achieve the right balance in deciding when it is appropriate for the bar to “weigh in” on current issues, we need to pay attention to both the substantive and perception implications. In addressing the substantive question of whether the issue is properly one for the bar, we ought to try to consider whether there would be a fairly broad consensus that the issue is a legal justice issue. It needn’t be unanimous, but it also shouldn’t be an entirely subjective judgment, since we all draw those lines a bit differently for ourselves.

When taking into account the perception question, we need to consider our track record and whether we create an appearance of an inappropriate bias over time, or whether we are using a process that doesn’t promote a thoughtful and consensus-based policy position.  Those of us in bar leadership don’t have all the answers. But you should be glad to know that we do spend time and effort thinking about this. One sure way to help keep us on the right track is for our members to be engaged in the discussions and let us know how you perceive these issues.

Getting the right balance isn’t going to get any easier in the years ahead. If you haven’t noticed, our courts are increasingly being asked to resolve the really tough public issues that our political system seems unable to address. As long as initially “political” issues are being recast as issues implicating legal rights or notions of justice (which they may indeed rightly be), then you can bet that the legal profession and the courts will be drawn into the discussion.

Here is the take-away thought I hope to leave with you as our member. We will not always agree on how to draw the line on these questions, but if we occasionally make the wrong call, please recall that membership in the bar is more than just an optional and transitory association. Ours is a relationship founded in our mutual professional calling.  A relationship we hope to last an entire career. Like any good relationship, we must try to be understanding, make allowances for our lapses, and take a long view.  While the choice to join or renew is certainly one way to express our important values, it can also
be a fleeting expression. A more effective, lasting, and meaningful way to give voice to our values  is by making the choice to engage and become involved.  Like much else in life, the benefit we get from bar membership has a direct relationship to how much we are prepared to invest in it.


Mike Unger


Michael W. Unger is President of the Minnesota State Bar Association. He is a Certified Civil Trial Specialist at Unger Law Office in Minneapolis, representing negligence victims for serious injuries and wrongful death.  He is also on the adjunct faculty of the University of Minnesota Law School.

Leave a Reply

Articles by Issue

Articles by Subject