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Bar Associations Must Meet Change or Become Irrelevant

At the recent ABA meeting in San Francisco, which I attended, the National Conference of Bar Presidents held a moderated discussion “Bar Associations . . . “ It is about changing or be irrelevant. During the annual meeting, I had several conversations with others about the value of belonging to a bar association, and how bars need to be relevant to their members or risk losing members and member participation.

Then I heard this: The attendance for this ABA meeting was approximately 3,500 registrants. Out of nearly 400,000 total ABA members. It was the smallest attendance for an annual meeting held in this city in decades. (I remember when attendance was reported at 10,000.)

In contrast, the American Immigration Lawyers Association, of which I am a member and employee, held our annual meeting in San Francisco in June, where attendance topped out at over 3,800 registrants. It was the largest annual meeting attendance in AILA’s history. AILA has 13,000 members—less than 3% the size of the ABA.

It is a clear sign of two bar associations going in two directions.

I have been an active member of the ABA for 16 years, and I am not trying to bad-mouth the association, but it is clear that change is needed to rejuvenate the members to once again participate in annual meetings and beyond.

The law is becoming more specialized, so an all-encompassing legal event like the ABA Annual Meeting has less of a draw today. So while 20 or more ABA Sections participate, they don't necessarily create their best programming for this August event. Most sections save those CLE programs for their fall and spring quarterly meetings, where it is exclusively their content and, frankly, their profit.

I thoroughly enjoy the networking opportunities at the ABA meeting, but fewer lawyers need or afford this exposure. Plus, younger lawyers have more trouble paying the costs, especially when they have on-line networking options such as LinkedIn available. 

I think specialty bars, such as AILA, and ABA sections, such as the Health Law Section, are where lawyers are finding the best bang for their conference buck. I hope the ABA recognizes this and makes changes to their annual meeting structure, or more regular attendees like me will stop attending.

 

Kudos to the ABA for Representing Our Profession Against Unwarranted Regulation

Kudos to the ABA for standing up to the FTC who want to add another layer of regulation on lawyers. The  FTC wants to include lawyers in their "Red Flag" financial rule, but a D.C. Court ruled earlier this year that the FTC has no authority to regulate lawyers. So the FTC decided to appeal. Leading that charge is the ABA. According to the National Law Journal,

[t]he Federal Trade Commission has no authority to lump lawyers in with creditors in the enforcement of regulations that govern the prevention of identity theft, attorneys for the American Bar Association said in court papers filed in a federal appeals court in Washington.

The ABA brief, filed Friday in the U.S. Court of Appeals for the D.C. Circuit, responds to FTC papers that argue that lawyers should be held to comply with so-called "red flag" rules that require financial institutions and creditors to develop identity theft prevention programs.

The FTC maintains that lawyers act as creditors when they provide legal services without immediately taking payment. The ABA sued the FTC in August 2009 in federal district court in Washington, winning a favorable ruling. The FTC is challenging the ruling on appeal.

"Here, the Commission is attempting again to foist a regulatory scheme on lawyers without the slightest indication that Congress intended or desired such a result," the ABA's brief, signed by Proskauer Rose partner Mark Harris, said. Harris, based in New York, co-heads the firm's appellate group. Click here for the ABA brief.

The ABA brief said the FTC's position is "unsustainable" in the D.C. Circuit, which previously ruled, in an unrelated case, that the FTC cannot regulate the practice of law unless Congress provides the commission with an "unmistakably clear" grant of authority. (NLJ 8-24-10)

The outcome will effect all lawyers in the U.S. regardless of ABA membership. Thank you to the ABA and thank you to all dues-paying ABA members (of which I am one) for funding this litigation that will help all lawyers.

Vote Devarieste Curry for D.C. Bar President

The annual D.C. Bar leadership elections are taking place this month, and I hope all Bar members will join me in voting for Devarieste Curry for D.C. Bar President. Devarieste is a long-time leader in the D.C. legal community, having served on the D.C. Bar Board of Governors, numerous bar committees, as well as participated in many pro bono events and activities. She is also an active member of many local and national bar organizations. She understands the business needs of lawyers, having worked in a large firm, as a solo practitioner, and in a small firm. Her experience, abilities, and commitment to the legal profession make her the best choice for D.C. Bar President-elect.

For more information, please visit Devarieste's election web site: www.dcfordcbar.net. You may have just received your paper ballot mailed to all Bar members last week, so you can return that ballot or vote on-line. Voting ends June 6.

Lost Lunch = Lost Productivity

Law firms, like many other businesses, are trying to accomodate staff requests to shorten the workday by allowing workers to skip lunch and leave early. Other firms allow staff members to skip lunch or work at their desks while eating in order to keep up with their work.  However, according to the HR Daily Advisor, skipping lunch does more harm than good:

  Blood sugar levels drop every 4 to 5 hours. If proper midday nourishment is skipped or shortchanged, performance suffers and mistakes increase. That’s prompted an innovative solution at government agencies in Nova Scotia, Canada. Management is actively pushing its people to go to lunch. Postcards have been sent to all employees, reminding them to “take back the lunch break,” and citing as reasons, the need to “relax, refocus, refresh, reenergize.”

Eating isn’t the only midday activity the experts recommended. Studies show that a 10-minute walk at lunch can spark a 2-hour burst of afternoon energy.

The end of the year may be a good time to review your office lunch policy, and make some healthy changes at the same time your staff is making New Year's resolutions. Consider circulating informal guidelines to encourage a break away from the office that includes a few minutes of physical activity and some nourishment each day. You may be surprised at staff productivity in the afternoon.

Lack of Uniform Billing Policies Costs Firm $1.1 Million

The ABA eJournal reports that a California law firm must pay a former associate $1.1 million for firing him when he failed to meet the firm's billable hour minimums. While the firm and the former associate still dispute the reasons why the lawyer was fired, the jury believed the associate: It seems that few associates ever met the firm billable minimums, but that the dismissed associate was the only one fired for missing the targets. And he missed those targets because he was being treated for liver disease.  Methinks the firm has a bit to learn about practice management! 

First, billable minimums are a double-edged sword. If you are going to have them, enforce them. If not, fugetaboutem! Most professionals do not need target minimums if they are being properly utilized and appreciated within the firm.

Second, never fire an employee in the midst of expensive medical treatment because everyone will assume that you are doing it to save on future medical premium increases on the firm's group health insurance policy. As this jury seemed to believe, that just isn't the way we treat people, whether or not the letter of the law was or was not followed.

Finally, well-crafted and articulated firm policies and philosophy could have prevented this whole incident. It takes time and effort to create such policies and to cultivate a more positive firm culture that would obviate such lawsuits. And, yes, that investment of time would otherwise be billable time, but I highly doubt it would be $1.1 million worth of unbillable time. That doesn't even take into account the cost to firm morale and reputation.

Kudos to Virginia Trial Lawyers for Hosting Another Terrific Solo and Small Firm Conference

I join my colleague, Jim Calloway, in saluting the Virginia Trial Lawyers Association (VTLA) for hosting their third annual solo and small firm conference this past week in Charlottesville, Virginia.  The conference featured three concurrent educational tracks, networking events, an outstanding vendor expo, and some of the finest lawyers in America.  Moreover, I had the pleasure of presenting several technology programs with Jim, and Bruce Dorner of Londonderry, New Hampshire. 

My hat's off to Conference Chair, Ben Glass, and VTLA's Jack Harris and Alison Love for creating and organizing such a valuable event for Virginia lawyers.

Solo conferences are wonderful vehicles for learning, networking with colleagues, and just taking a short break from the rigors of the office. Check to see if your bar or trial lawyers association offers such a conference in your state, and schedule the time now to attend.

What's Wrong with Mandatory Retirement?

This National Law Journal story on law firm mandatory retirement policies demonstrates the high-wire act law firms are walking to transfer responsibility, money and power to the next generation of partners.  These policies, in effect at many larger firms, promote the gradual transfer of client matters to younger lawyers within the firm when a senior partner approaches mandatory retirement--usually 70 years of age.  They seek to gently move partners towards retirement over a period of three to five years.

The problem arises when one or more senior partners do not want to slip quietly into the night.  For many, it is difficult to stop being a lawyer.  After 40 years, one's whole identity can be wrapped up in being a lawyer.  When the lawyer stops being, so does the person.

So while law firm retirement policies help the clients and law firm, they need to be flexible to deal with the wide range of human psyches belonging to retiring partners.  Rather than a one size fits all policy, law firms must address the underlying human needs of partners to achieve a total win-win-win solution.

Retirement options for senior partners should include the opportunity to remain a partner at some level to help the firm achieve its pro bono goals, Of-counsel agreements with tiered financial incentives, and the option to work as a solo practitioner subleasing space and services from the firm.

It just seeems the right thing to do for all involved.

Law Firms: Know Thyself!

My friend and colleague, Suzanne Rose, hits a home run in her latest article in Law Practice Today.  She succinctly identifies certain cultures and behaviors in law firms that can lead to malpractice claims.  She pinpoints cultural factors in firms including:

• Taking the short-term view
• Loosely affiliated office sharers acting as a firm
• Poor fiscal responsibility
• Poor environment of integrity and trust
• Eat-What-You-Kill Philosophy predominates

I think she would also agree that law firms with such cultures are also on the superhighway to disciplinary complaints and, potentially, financial ruin.

Unfortunately, too few lawyers and firms stop to consider the symptoms Suzanne has so clearly describes.  These lawyers focus their efforts on client legal work to the exclusion of effective law firm management.  They are too concerned with their clients’ matters or with their own short-term income needs to focus on the bigger (non-billable) picture.

It often requires a nuclear event to get these firm leaders to wake up, such as the defection of a profitable practice group, loss of one or more key partners, a disciplinary inquiry, or a malpractice complaint. To me, the big question is how to get firm leaders to take notice of their cultures and behaviors before the Big Bang happens. 

Unfortunately, no easy answers come to mind.

Law schools leave many graduates unaware of the need for management skills in the “real” world.  A few leaders in our profession continue to press law firm management as a crucial component of professionalism.  A small number of bar associations have made strides to better prepare their members for the business of practicing law.  And some lawyers self-identify the need for management and solve the matter through continuing legal education and self-study.  As Suzanne noted, these efforts continue to fall short.

It will take a more concerted effort within the organized bar to raise lawyer awareness of the need for greater management skills, planning, and implementation.  This should include CLE credit for law practice management courses; making such courses a requirement for all lawyers; greater emphasis of management concepts within the Rules of Professional Conduct; increased prominence of practice issues in bar communications with members; and greater availability of practice management resources for bar members.

Market forces will still weed out certain firms that fail to meet minimal business standards. I’m all for that. However, lawyers are professionals, not just businesspersons. We owe it to our profession and the communities we serve to take greater steps to improve the professionalism of all our members.

What's Hot in 2005

Long-time Law Practice magazine columnist and strategic marketing guru, Robert Denney, shares his 16th annual report on the pulse of the legal services market in the current issue of Law Practice magazine.  His “What’s Hot and What’s Not” is always worth a read.  So what’s hot, according to Denney?  Employment law, IP, and contingency litigation are “red hot”, while white collar crime, real estate, corporate, immigration, education & school law, and Indian & gaming law are among the hottest areas.  There are some areas starting to heat up including mergers and acquisitions, media law, health-care mediation, and pharmaceutical work.  Cooling off are bankruptcy, personal injury, and environmental work.   As for marketing trends, seminars are still a great way to attract attention, according to Denney. Extranets are cooling fast, and “branding” is cooling too.  Finally, Denney adds in a few trends in law firm management and governance, including the fact that many firms remain undercapitalized, firms are not sufficiently dealing with culture issues, and law firm leaders are still not receiving sufficient management and leadership training.  Can I get an “Amen?”