August 1999 

 A Profession at the Crossroads

by Wood R. Foster Jr.

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For several years, the looming arrival of January 1, 2000, has prompted great anxiety, self-examination, and feverish activity among computer manufacturers, software designers and vendors, and technology consultants.

For the legal profession, the primary reaction appears to be the marshaling of litigation forces, poised to pounce on every discoverable instance of Y2K technology failure. The first complaints will be filed on the first business day of the year 2000. The media will howl, legislators will posture, the image of lawyers will suffer, and life will generally go on as before.

But the legal profession may have its own Y2K problem. I suggest to you that the components of our profession that represent the profession at its best, and that distinguish the legal profession from all others, face severe threats and inroads as we face a new century. And while the image of a professional crossroads is harder to visualize than a millennial crossroads, I believe I can offer evidence that should give all of us pause if we are interested in the preserving the profession as we inherited it and as we (presumably) want to leave it.

Most of the forces that bring us to this moment in history have occurred during the last 30 years in Minnesota, coinciding almost exactly with the tenure of my own practice. Before examining the threats to the profession, it is worthwhile to remember that those same 30 years have seen a flowering of the most positive aspects of the profession. In this category, I include Minnesota's proud history of national leadership in such areas as public defense, legal services funding, continuing legal education, ethical standards, volunteer lawyer organizations, client security funding, and so on. Most lawyers whose practices take them to other states know how well the profession in Minnesota stacks up. Where else can you find most of the state's largest firms subscribing to the ABA Challenge, pledging at least 50 hours per lawyer per year to pro bono work? In 1998, the state's largest firm donated some 28,000 lawyer-hours. It did this without publicity and without expectation of reward. This is a remarkable statement of commitment to the service components of the legal profession -- a commitment shared by many, many Minnesota lawyers.

Running counter to these bright developments, and bringing us closer to what I believe to be the critical crossroads, are a number of other developments. Consider:

Loss of Community: Since 1970, the number of lawyers in Minnesota has more than quadrupled. In the metro area, we simply do not know one another. We all know the toll this growth has taken on professional civility.

Fragmentation: Specialization was very uncommon 30 years ago; specialty certification was unknown. Most lawyers now severely limit their practices. Many specialty groups have formed associations or sections to look out for their particular interests. Compounding this is a proliferation of minority bar associations, representing ethnic and gender groups within the practice. Such organizations were virtually unknown 30 years ago. State bar participation continues a long, slow decline.

Polarization: Plaintiff and defense bars have squared off with powerful educational and lobbying arms, resulting in divided loyalties and a "we-they" atmosphere.

Competition: At the upper reaches, at least, the practice of law has become very competitive. Escalating salaries for new lawyers, blocs of lawyers moving lucrative practices from one large firm to another, the disappearance of barriers that once prohibited advertising, and the seemingly unending spiral of hourly rates all testify convincingly to the existence of a level of competition unknown 30 years ago. Law firm mergers, acquisitions, globalization and even failure complete the picture.

Expectations: In 1970, the average large firm associate nationally was expected to bill 1,400 hours. Today's requirements can exceed 1970 targets by up to 800 hours per year. These extra hours come directly out of a lawyer's time for personal growth, family, and community.

The crossroads before us, then, is where the legal profession meets the "business of law." How many more characteristics of pure business enterprise can we absorb without losing our identity as professionals?

Wood R. Foster Jr. is president of the Minnesota State Bar Association. A partner in the firm of Siegel, Brill, Greupner, Duffy & Foster, PA, he concentrates his practice in commercial litigation and class action. He is a graduate of Amherst College (1965) and of the University of Michigan Law School (1968).

As if to put an exclamation point on this trend at the end of the century, the ABA Commission on Multi-Disciplinary Practice (MDP) recommends that we begin the new millennium by dropping the ethical barriers that have historically prevented lawyers from engaging in practice with nonlawyers. Whether MDP is a radical idea or only a recognition of a fait accompli remains to be seen; beyond question, this issue will dominate the professional discourse during the year -- perhaps years -- to come.

I hope in the coming year to engage Minnesota lawyers in this discourse, to be sure that our own MDP response is carefully thought out, broad-based, and well-voiced. I have asked many of the Association's sections and committees to address this topic to complement an MDP Task Force chaired by Rebecca Moos and Art Boylan. But MDP is only one aspect of the greater question: Where are we headed? Which road will we take?

Let the dialogue begin. The choices that confront us do not have to be left to chance.