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

On Edge: The Future of the Profession

0516-Future-MazeAs I wrap up this special issue, I offer fair warning that the following is a personal plea from me to each of you who has been interested enough to read this far. It is a plea that you revisit the very concept of “profession” as it applies to what we do—the legal profession—and that you consider recommitting yourself to it. As a practical matter, the organized bar offers the most accessible (but certainly not the only) vehicle for most lawyers who want to protect and improve the profession.

Two core sets of functions are performed by bar associations. One set is “practice-facing”—the ways the organized bar can help us improve our practices, make it easier to keep up with technology, teach us to market ourselves, and other such practical matters. The second is “profession-facing”—more abstract, less immediate, and much harder to define, but likewise a (or perhaps the) core responsibility of the organized bar.

Much of what we see today in books, articles, websites, and other vehicles eager to explain “the future of the legal profession” turns out not to be about the future of the profession at all—instead, it is usually about the future of law practice. And there is a huge difference. A recent ABA Bar Leader article entitled “What the future legal market means for lawyers and bar associations” addressed itself entirely to the need for the organized bar to offer more CLEs to educate lawyers on process improvement, technology use, web presence, pricing, cost controls, and so on. Its implicit message was that bar associations must focus more on how to make their members’ law practices more successful.

And while I don’t doubt that the next 15 years will bring even more technological change to the practice of law than the last 15, that doesn’t change our need to focus on what we know for sure about our profession right now—that the pace of change, coupled with the necessity of specialization, is forcing all of us further and further away from the core functions of thinking and acting as members of an important profession and closer and closer to thinking and acting as specialists in increasingly narrow practice spaces.

Why does the organized bar need to exist? Because, to us, law is not a market in which justice goes to the highest bidder and lawyers are not just hired guns. The law is a way to bring the benefits of due process, equal protection, and constitutional democracy to the underrepresented, the have-nots, the discriminated-against, as well as those who can afford legal services.

The much-lamented decline in civility and professionalism among lawyers in recent years may be directly attributable to the decline in bar association membership and the resulting lack of opportunities for lawyers to meet one another outside the office and outside the adversarial system.

A more numerous, more invested membership legitimizes the bar’s public service work, and its ability to represent the public interest as well as its own, by making that work more truly the work of the whole bar.

– Michael J. Ford, MSBA president 2008-09, Bench & Bar of Minnesota, 01/2009

I am frankly asking you to think about this, and recognize that while we have no choice but to pay close attention to the rapid changes in the practice of law, we must also be careful not to lose sight of the even more rapid changes to the legal profession. And I’m asking you to talk about it with your colleagues, especially your younger colleagues.

Let’s start at the beginning: how do we even define ourselves? Dictionary definitions of “profession” are so bland that they leave little but higher education as the distinguishing feature of a “profession.” Webster, like most resources, reduces “profession” to

a: a calling requiring specialized knowledge and often long and intensive academic preparation;
b: a principal calling, vocation, or employment; or
c: the whole body of persons engaged in a calling.

But while we might agree that this definition seems woefully incomplete, I have found nothing much more satisfactory, given the scope and the history of law and legal systems. But I suspect that most lawyers—at some level—believe that our profession rests on much, much more than a J.D. and a bar exam.

While I cannot offer a definition more pointed than Webster’s, an ideal definition would somehow convey that as legal professionals, we have a special relationship—a duty, if you will—to the law itself, a duty that entwines us in:

  • the way law is made and enforced;
  • the way law is challenged and changed;
  • the way law is interpreted and applied;
  • the way law is practiced and respected;
  • the way law is recorded and taught;
  • the way law informs our systems of government;
  • the integrity and skill with which law is practiced; and
  • the response of non-lawyers to all of the above.

It’s no accident that lawyers are necessarily and uniquely involved in all three branches of our system of government. And because of the power of law, it is also no accident that non-lawyers are often suspicious of lawyers, given their ability to harness and sometimes “manipulate” the law in ways non-lawyers occasionally can’t even understand, let alone accomplish on their own.

Simply put, it is the role of the law as a fundamental basis of all human relationships and its constant (and ever-changing) relevance to how we govern many important aspects of our lives that establishes and constitutes the essence of our profession. Despite the endless specialization and variability of our practices, we all occasionally find ourselves experiencing the raw frontiers at which law is made, interpreted, changed, used (and misused), and occasionally even struck down.

The current internationalization of BigLaw is just such a frontier. It’s spontaneous, unprecedented, fast-moving, complex, important, and (to most of us) remarkably opaque. But no matter how exciting it is to invent the future, we have to be careful to nurture and sometimes revisit the lessons of the past.

And it is in this context that I ask you to think about—and engage with—our profession. Whether we practice alone in a small town or in the biggest BigLaw firm, every one of us, at some level, understands that we have an undefined duty of some sort to the profession that goes beyond the specific type of law we practice. We also understand that abstract thoughts like these can easily be brushed aside in the daily press of clients and the unique complexities of our practices. In a time of headlong changes, it’s all too easy to despair: What can I really do anyway?

I can only offer a partial answer: Whatever we can do, we can’t do it individually. We never could. We never will. We can only do it together. But what we have been doing together in our professional associations has been directed more and more at the economics and the technology of our day-to-day practices, and less and less at the fundamental role(s) of our profession in society—particularly now, when the pace of change is dizzying.

What are those roles? Historically, bar associations have concerned themselves not only with the well-being of lawyers and their law practices, but with core issues that do not change nearly as quickly as the practice-facing issues:

  • safeguarding and assuring adequate funding of our court systems and improving the processes by which judges are selected;
  • improving our laws by assuring that proposed changes are reviewed by a wide range of lawyers;
  • reviewing, improving, teaching, and enforcing the ethical, professional, and practice standards to which we have agreed to bind ourselves;
  • establishing and maintaining high quality legal education and continuing legal education;
  • addressing inequality of opportunity and potential bias in legal institutions and supporting efforts to improve diversity and inclusiveness;
  • identifying and bridging the justice gap by encouraging and supporting institutions and programs that provide opportunities and support for lawyers to provide pro bono services;
  • accommodating and adjusting to the rapid internationalization of BigLaw, addressing the new forms of association (read: MDP) that will soon accompany that process, without limiting or diluting the core integrities and responsibilities of the profession; and
  • protecting the public and assisting lawyers by providing adequate resources to address growing mental health and chemical dependency issues among lawyers.

As recently as the early 1970s, with minor exceptions, a lawyer’s options for bar membership were (1) a state bar association; (2) a local bar association; and (3) a national bar association. Like almost every other Minnesota lawyer of my era, I joined the MSBA when I was admitted to the bar in 1968. Today, less than two of every three Minnesota lawyers belong to the MSBA. Membership drops almost every year. This is true in almost all voluntary bar states; in mandatory bar states, member participation diminishes at the same rate membership wanes here.

When you become a lawyer, you become part of a community that owes it to the community to give back and you have a special unique skill and you should use that special unique skill to give back to your community, to make your community a better place. It really is what elevates us to a profession. Many of us went to law school because we thought we were going to change the world and then you get out to the world and it’s not quite as easy as you think it’s going to be.

– Suzanne Pontinen, executive director of Volunteer Lawyers Network, in Minneapolis Star Tribune, 3/19/2016

Yes, you might reply, but other law-related organizations are proliferating in order to address our more and more narrowly specialized practices. And this is true—there are literally dozens of options. Most of these options are identified in a sidebar; many of the listed groups have state-level counterparts. And of course there are underlying reasons, pressing needs, and good arguments for each. But don’t lose sight of the fact that specialty bars are almost all practice-facing. And as specialty bars proliferate, state bar participation dwindles.

I don’t think I exaggerate when I suggest that the more we think of ourselves as specialists, the less we think of ourselves as “lawyers” in the broadest sense. And this is a huge loss to the profession. In this process of specialization, our state and national bar associations are losing both power and effectiveness as representatives and protectors of the profession itself. Our opportunities—let alone our collective responsibilities—to address the issues surrounding the legal profession as a whole are stunted by this process. Every national, state and local bar group in the country is grappling with loss of membership, loss of participation, loss of revenue, and increasingly, uncertainty as to direction. If we are not part of the solution, what are we part of?

The dramatic emergence of BigLaw will inevitably change the profession in still-uncharted ways. But it presents a threat to the organized bar in at least one respect. Historically, the nation’s (and Minnesota’s) large firms have prided themselves on their bar leadership. Large firms everywhere have been important supporters of bar associations, often paying the full dues for their associates, providing candidates for bar leadership, and encouraging associates to be active. But as large Minnesota firms morph into—or are absorbed by—international BigLaw firms, what happens to their partners and associates in terms of their roles and responsibilities as state and local bar leaders? Despite their undoubtedly good intentions, the focus and the priorities of BigLaw managing partners are (by necessity if not by definition) elsewhere. Incentives for BigLaw associates, of whom up to 2,000+ annual billable hours are often expected, to “get involved” in state and local bar associations are almost certainly diminished, as are the available hours in which they might do so.

Should the profession just write off BigLaw as a source of leadership? Frankly, we can’t afford to. One thing we know for sure about BigLaw is that it consists of men and women who have always excelled at whatever they do. The profession needs them.

Whether you are a sole practitioner, a small-firm lawyer, a professor, an in-house lawyer, or a partner in a BigLaw behemoth; whether you are a judge or a prosecutor or a public defender; whether you are a legislator, an administrator, or a law professor; or you are involved in any of the many other pursuits that lawyers chase, please put the needs of your profession on a par with the needs of your practice. There are hundreds of ways to get involved, and endless ways to make a commitment that will not impinge on your livelihood.

If you do, I am sure of one thing: You won’t regret it.


I really do need to thank:
  • My wife Jane Severns for her patience, support and helpful suggestions;
  • My brother Dutton Foster for his editing assistance;
  • The lawyers and staff of Siegel Brill (particularly Heidi Furlong) for their critiques,
    ideas and technical support; and
  • Executive Director Tim Groshens, Bench & Bar Editor Steve Perry and the MSBA staff,
    along with immediate Past President Richard Kyle and current President Mike Unger,
    for their support and encouragement of this project.

– Wood R. Foster, Jr.


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.  


Bar Associations at the National Level

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