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

A Profession on Edge: Introduction

0516-Profession-MazeIn 1999, the MSBA published For The Record: 150 Years of Law and Lawyers in Minnesota, a compendium of historical essays, yarns and figures charting the Minnesota legal profession’s growth from the appointment of its first judges in 1849 to the state’s surpassing of the 20,000-lawyer threshold in 1999. The publication of this comprehensive volume coincided with the beginning of my tenure as 1999-2000 MSBA president. In that year, everything about the still-growing legal community seemed exciting. Lawyers at all levels still seemed to be engaged in both growing the profession and striving for the highest professional quality and ethical standards. Minnesota lawyers were national leaders in improving legal services for the disadvantaged, building greater racial and gender equality, and maintaining high professional and judicial standards.

Today, looking back to that time, it strikes me that the practice of law in the year 2000 bore more similarity to the practice of law in 1950 than to the practice of law in 2016. Right up to the end of the century, law firms were formed and grew much as they had always been formed and grown. Clients at all but the highest levels were wooed and retained largely on the basis of reputations and individual relationships. Small firm and small-town lawyers addressed time-worn legal issues very similar to the ones faced by their predecessors throughout the 20th century. Technology had started on its systematic and continuing march; word processing and electronic legal research had already elbowed their way into firms large and small. The hourly rate remained the hallmark of legal service billing.

An American with a smart phone now has more access to legal sources than most lawyers or judges did 15 years ago.

– Benjamin Barton, 2015, CNN.com

In fact, a good argument can be made that the legal profession has changed more in the last 15 years than it did in the 150 years from 1849 to 1999. An astonishingly rapid series of social, economic and technological changes are retooling the practice of law in unprecedented and largely unforeseen ways.

A Time of Intense Change

In 2000, there were roughly 20,000 licensed lawyers in Minnesota—a 400 percent increase over the number in 1970. Here and in other states, law schools were thriving and growing. Demand for legal education was strong, as were the academic credentials of applicants and students. Promising associate lawyers at large law firms expected to be made full partners, usually in eight years or less. Hourly rates in major legal markets were on a direct trajectory toward $500 per hour. Small firm and solo practitioners in Minnesota and elsewhere made livable, sustainable incomes and met the needs of a huge segment of the population.

The internet, global connectivity, and a rapidly changing economy were only beginning to affect the practice of law. Minnesota law firms were just that: Minnesota law firms. The term “BigLaw” was unknown in 2000. Multidisciplinary practice (MDP) initiatives had been considered in some states, including Minnesota, but all such initiatives quickly withered in the wake of the Enron and Arthur Andersen debacles. Marketing was rarely thought of as a discrete component of the practice. Computer programs that could duplicate legal work weren’t even in the development stage.

Our expectation is that, over time—by which we mean decades rather than overnight—there will be technological unemployment in the professions. In other words, there will not be sufficient growth in the types of professional task in which people, not machines, have the advantage to keep most professionals in full employment.

– Richard Susskind and Daniel Susskind, The Future of the Professions (Oxford University Press 2015), p.291.

In 2015, a review of the available information about the legal profession in Minnesota and virtually everywhere else in the U.S. draws a very different portrait. Growth of the profession—at least for the moment—is approaching a standstill. The demand for lawyers fresh out of school is markedly down, as are the academic credentials of current law school applicants. Bar passage rates are down. Lawyer income, except at the very top, is flat or down. The venerable hourly rate is (or will soon be) an endangered species in many quarters.

Lawyers themselves are reflecting the stress that necessarily accompanies these accelerating changes. Just a few months ago you may have read in these very pages the newly released and very disturbing figures on elevated rates of alcohol abuse and depression among lawyers as revealed by a Hazelden/Betty Ford Foundation study.

In terms of the business of law, state and even national lines are now routinely crossed; “BigLaw” is a well-understood and closely observed phenomenon in most large markets. Mergers of Minnesota firms with firms in other states, and the expansion of Minnesota firms to include branch offices in numerous states and foreign countries, are now taken for granted. Most firms now have marketing consultants, if not in-house marketing departments. Multidisciplinary practice, now permitted in England, is under strong consideration in Canada, and seems likely to be permitted in some parts of the U.S. in the foreseeable future. Many lawyers who had never heard of a “Swiss verein” as recently as 10 years ago now belong to one.

In other words, most of the reasonable assumptions that could be made about the future of the practice of law in 2000 have been seriously challenged—and in some cases upended—in the first 15 years of the twenty-first century. 

In 1999-2000, I had no more idea than anyone else what the future held for the profession. As MSBA president, though, I did have opportunities to meet with many groups of lawyers, as well as to serve on the task force that specifically (and, as it turned out, prematurely) recommended that Minnesota adapt its ethical rules to permit some form of multidisciplinary practice. What I did notice, as I observed in a February 2000 column in Bench & Bar, was that “in the various focus groups I have held with lawyers in the past year, I have found that lawyers are generally reluctant to visualize the profession’s future.” As I now understand (to my chagrin), I was describing myself too.

A Shifting Marketplace

In many respects, of course, the day-to-day practice of most fields of law continues to be carried out as it has been for decades. The manner in which law is taught in most law schools today would look and sound very familiar to lawyers of my generation and earlier. But what lawyers today are encountering in the real-world marketplace for their expertise has diverged radically from pre-2000 norms and expectations.

The purpose of this special edition of Bench & Bar is to identify and explore some of the most important changes in the profession from 2000 until now. Because the changes in the profession are now so clearly national—even global—in scope, the subjects and sources of information in this volume are not limited to local perspectives and developments. The changes we are experiencing in Minnesota are happening, albeit at different rates, everywhere in the United States.

Some of the most visible changes described in this issue focus on the recent BigLaw phenomenon. The very advent of BigLaw—coupled with developments such as the steady march away from traditional billable hours, the internationalization of legal practice, the sudden proliferation of non-equity partners, and the looming prospect that non-lawyers may soon become financial partners in major law firms—is a big part of our story.

The profession is headed towards a core conflict – between the public interest sector, which has an interest in assuring that all citizens have access to the “simple” transactions that allow them to interface effectively with today’s government agencies, and the legal profession, which sometimes seems set on a path that is not price-competitive with alternative mechanisms for delivery of those legal services.

– G. Burgess Allison, author of the Technology Update column in Law Practice magazine

But the flip side of that story, if less glamorous, is equally compelling. BigLaw comprises about 10 percent of all active lawyers. The rest, mostly small firm and (especially) solo practitioners, are being affected by other changes. These include downward income trends, the increasing number of Americans who cannot afford legal services at any price, the fact that many law schools are attracting less qualified students than ever before, the “do it yourself” technology revolution, the ever-dwindling number of lawyers in rural areas of the state and nation, the ongoing struggle for diversity, and the ever-shrinking number of things we lawyers hold in common to bind us together as a profession.

Accordingly, my goal in this issue is to synthesize a huge amount of information from a wide array of sources typically frequented only by bar junkies, curious journalists, and law professors. Like them or not, the changes we’re seeing are real.

Anyone who has followed the upheavals in the profession in recent years may wonder why there’s no separate section on legal technology per se. That’s because—the fact that I’m a technophobe notwithstanding—the changes bred by legal technology impact almost every one of the changes to the profession that are the focus of this entire package.

The last section of this issue is devoted to the future of the profession itself. What was once a gap between downtown law practices on the one hand and neighborhood and small-town practices on the other has become a very wide chasm. Similar chasms have opened between civil, criminal, and a growing range of specialized topical law practices. On the demand side, there is an ever-widening space between megabusinesses that need legal services and a growing number of individuals who can’t afford legal services at any price. Specialty bar associations are proliferating while voluntary state bar associations—like ours—are shrinking. It’s sad but true: We lawyers have less and less in common with one another. And in that process, we have—almost necessarily—focused much more on the practice of law than on the profession of law.

But every one of us should have an interest in figuring out how we as a group—a group whose specialties and practice settings have less and less in common with each other—can work together to keep the legal profession from balkanizing completely.

Can we find new ways to talk to each other about the core essence of the legal profession—our profession—in terms of protecting our common interests, protecting and serving the public’s needs and expectations, upholding our ethical standards, and assuring the ongoing quality and effectiveness of our courts? I hope so. Please explore it with me. The dialogue starts right here.

 

Next: Jobs in the Law: A Profession hits “Pause”

 


ABOUT THE AUTHOR

Wood R. Foster, Jr. practiced law in Minneapolis from 1968 through 2013, most of it as a litigator with the firm now known as Siegel Brill. He served as HCBA president in 1992-1993 and as MSBA president in 1999-2000. He conceived and edited “For the Record: 150 Years of Law and Lawyers in Minnesota,” which was distributed to all lawyers and libraries in Minnesota in 1999. Wood served as a member of the Lawyers Professional Responsibility Board for eight years beginning in 2001. He was a founder, 1993 president and 30-year board member of the Advocates for Human Rights. As a retiree, he works one day each week with the “St. Paul Regulars,” a Habitat for Humanity crew.  


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