Transforming Bar associations

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So I’ve been busy writing again, this time about what the changing legal marketplace is doing to two longstanding members of that market: law librarians (for Thomson Reuters’ Legal Solutions column) and bar associations (for the ABA’s Bar Leader e-magazine). The latter article, co-authored with the great Fred Ury, prompted a post by Sam Glover at Lawyerist: How Can Bar Associations Stay Relevant? Sam was skeptical about our prescriptions for bar associations and suggested one of his own:

In addition to offering free forms and CLE, I think what would get me most interested in my bar association would be a return to basics: building relationships among members. This could be especially valuable for solos. I get the best forms from my colleagues, but I wish I had an easier time finding mentors when I moved into a completely new practice area. I like to learn about technology and marketing and stuff, but I always find that the people doing the most interesting things in their law practices are in the audience at CLEs, not on stage. And, perhaps most crucially, I can get CLE credit just about anywhere, but I don’t have a local softball team to join.

I left a comment on Sam’s post, which I’d like to expand upon here, since this whole question is drawing a lot of attention — and rightly so. Bar associations are facing some existential challenges right now, and I wouldn’t want to see them just disappear beneath the waves without trying to extend a hand.

Many bar associations find, when they do a sober inventory of their true assets, that they have fewer than they supposed, especially in terms of the relevance and distinctiveness of their activities and services. Almost everything they offer to lawyers can be replicated in some way by other service providers, most of which have neither the overhead costs nor the organizational slow-footedness that hamstring associations. Like law firms, these are legacy organizations with legacy costs and legacy thinking, and they find adjustment to be a very difficult process.

But what most bar associations can still boast, the one legacy holdover that’s helpful to them, is their reputation: the brand recognition and authority they can still muster among lawyers. These assets have been developed over the course of many years of service, albeit service to a very different profession in a very different market than this one. But the respect survives as brand awareness, legitimacy and trust — much as it does for many historic law firms whose name partners died a long time ago.

Legitimacy is not a standalone asset, of course: what matters is what you do with it. And if bar associations are going to survive, they need to apply that legitimacy by providing lawyers with services that have one thing in common: they are distinctive. Bar services have to differentiate themselves from similar services available elsewhere. Here are a few examples that expand upon the points Fred and I made in our article:

Forms: It’s not enough simply to stick the association’s logo on a boilerplate legal document and suppose that that will carry the day. The document has to be distinctively different and better: assembled by leading practitioners in a given subject area, subject to scrutiny by blue-ribbon oversight committees of judges and lawyers, approved by the local professional insurance provider (ideally, a bar-affiliated one). Create forms and documents like these, demonstrably and qualitatively better than what other providers sell — and then provide them for free solely to members. That has value to the lawyer and will help set the association apart.

CLE: Bar association CLEs often are no different than what private providers offer, while association annual meetings have tended to become exercises in both self-absorption and self-congratulation. But what Fred and I proposed is distinctive CLE: extremely practical and law-business-oriented programs would stand out all on their own (most CLE offerings are retrograde black-letter law-based), while (as I wrote two years ago) fresh new formats would invigorate attendees: un-conferences, speed-roundtables, micro-panel discussions for small, specialized groups, and so forth.

Relationships: Sam emphasizes this, and it’s true that building relationships among lawyers has real value. But most lawyers now have multiple channels for facilitating relationships (both old and new), and importantly, they don’t need an association to help maintain them. A good route forward here would be to affiliate relationship-building with the distinctive CLEs mentioned above: get lawyers out of their seats and walking around, talking to other lawyers about practice and business issues. Associations could also host “private study groups” that give lawyers the opportunity to interact, come to rely on each other, and build distinctive networks available nowhere else.

Advocacy: Again, as I’ve written before, “lobbying” doesn’t exactly have a inspirational ring to it, and issues activism can be highly divisive and detrimental to member retention. So I think lawyer associations should transform themselves into lawyers’ marketplace evangelists. They should adopt as their mission a sustained campaign to trumpet the unique advantages of choosing lawyers over the many other options spreading throughout the legal services market. Advocate to clients why a lawyer is better than the “non-lawyer” alternative. Nobody else is carrying out that kind of lobbying, and bar associations are perfectly placed to do so.

Associations should recognize that the residual (and in fairness, often continuing) level of recognition, trust and respect they command among members of the profession is their most outstanding asset — but it’s an asset with which to start the reinvention process, not end it. Maintain that recognition and respect, seek always to improve them, and most importantly, find ways to leverage them. But along with the process of identifying that value comes a recognition and acceptance of some tough choices about who you are as an association and what you stand for.

A bar association that tried taking the steps I outlined above would immediately run into stiff opposition, both internally and externally, from people who resist change and prefer the longstanding ways of doing things. It’s my belief that sticking with traditional services delivered in traditional ways inevitably will result in gradual, relentless attrition for the association and ultimately, a smaller organization. But making the tough choices and radical changes described above will deliver much the same result, albeit far more quickly. Either way, associations are going to experience member loss. So the questions become: (1) If you’re going to lose members anyway, don’t you want to lose them in service of being the organization you want to be? And (2): As between these two paths forward, which do you think holds more promise for renewal and revival down the road?

I addressed the National Association of Bar Executives (NABE) a few months back, and one of my messages to them was this: you need to get used to the idea of being smaller. Associations (like many other entities in the legal market, such as law schools and legal publishers) have long been accustomed to equating size with success: if you have lots of members and are always adding more, then you’re winning. I suggested to these bar leaders that they abandon the idea of growth for growth’s sake and start aiming to become focused, distinctive groups that, yes, might be smaller, but that have very high levels of satisfaction and loyalty, because they do things differently and they do them extremely well.

The legal market now and in the future is too fractured and specialized for an all-purpose, general-interest association to adequately and comprehensively serve — especially if it looks and feels like every other service provider out there. Decide what you want to be, and who you want to be for: that’s good advice, as far as I’m concerned, for both bar associations and the lawyers they hope will join them.

Available now! My first two published books: Evolutionary Road (e-book published by Attorney At Work) and Content Marketing and Publishing Strategies for Law Firms (co-authored with Steve Matthews, published by The Ark Group). Click the links to learn more and order your copies today.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

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4 Responses to “Transforming Bar associations”

  1. John Gillies

    A thought-provoking posting as usual, Jordan. I would, however, like to challenge you on one item, namely your suggestion on how bar associations might develop their own forms. The idea itself is, I believe, very compelling. How those forms get created, however, is the key question.

    You start by suggesting that they be “assembled by leading practitioners in a given subject area.” First, I’m not sure what interest the leading practitioner (who is presumably with a large firm) would have in developing forms like this to be given away to solos and small firms. Second, anyone who has tried to advance a precedent initiative has hit the wall of trying to get busy practitioners (a) to find time to devote to the project, (b) to agree amongst themselves on what standard practice is, and (c) not to lard the resulting document – assuming such document ever sees the light of day! – with multiple clauses that might, possibly be needed in extremely unlikely circumstances.

    I would suggest that the better approach would be to use the linguistic analysis software that we see being developed now (the best of which, that I’m aware of at least, being KMStandards), which allows one to sidestep that bottleneck and develop precedents that reflect actual usage.

  2. Dustin Cole

    You are right as far as it goes, Jordan, but there is much more to the story.

    First, as Bar Association to get smaller, what will they be? In the United States, there are many varieties of Bar Association’s, from the unified – those where membership is required, and the Association is both the advocate and the policeman – there are the statutory, where they are not the regulators but membership is required for licensing, and there are the voluntary, where membership is not required.

    The unified will be laggards, eventually providing the greatest dissatisfaction for members, because they will likely be the most complacent. “It’s our ball and you can’t take it away from us.” Meanwhile, they will struggle for income because most of their revenue sources such as CLE’s and meetings, will melt away.

    The voluntary – from the specialty groups and state bars to the city and County bars, backspace – have the most opportunity for change, since they have appeal beyond CLE requirements in order to attract members. The smaller bars and the national specialty bars are in the strongest positions. The first because small bar associations are primarily founded on collegiality and personal relationships, and the second due to the need and opportunity for specialized legal information sharing.

    So what of the larger associations which find their traditional agendas dissolving?

    Hopefully they will evolve into animals unfamiliar to the profession but more than familiar in the business world: trade associations – dedicated to promoting the profession and the financial health and welfare of its members. Associations focused on helping its members cope successfully with the massive changes sweeping over the profession. And as such they may develop new methods for their members to operate more profitably, collaborate, cooperate, and cope with the changing environment.

    And hopefully, such associations will become advocates and leaders for change, rather than organizations tethered to the past, and seeing their role as the enforcers.

  3. Ken Adams

    Regarding forms, my experience suggests that the potential role you see for bar associations ain’t happening.

    You have the problems pointed out by John Gillies in his comment: Leading practitioners are unlikely to be keen on commoditizing their drafting expertise. They might well not have the time. And “drafting by committee” has a way of bogging down any drafting initiative.

    LACKING EXPERTISE

    But the problem goes beyond that. The lawyers and judges who would do the heavy lifting might be experts in their field, but it’s unlikely that they’re experts in writing.

    Consider this from the perspective of contracts, the most compelling candidates for forms initiatives. Contract drafting has long consisted of regurgitating the language of contracts that have gone before, with the result that traditional contract language is dysfunctional. It’s safe to assume that the stalwarts of bar associations are steeped in that tradition, so it would be unrealistic to expect them to bring to bear a more rigorous approach, particularly as they’re volunteering their time.

    That’s why all bar-association model contracts that I’ve seen are at best decent starting points.

    INSUFFICIENT ECONOMIES OF SCALE

    And even if a bar association were willing to try a suitably disruptive approach, the economies of scale aren’t what they might be, at least when it comes to contracts.

    The lawyers in a given jurisdiction are probably called on to draft a broad array of contracts, so it would be a challenge to compile a library that’s big enough to be useful. And you can expect that a particular kind a contract is also used in other jurisdictions; you could end up with lots of bar associations each preparing their own forms for that kind of contract. That’s inefficient.

    Until such time as bar associations establish a consortium for forms initiatives—in other words, until such time as pigs fly—I think that a more likely vehicle for commoditizing contract drafting is trade groups for particular industries or government functions: they could offer a limited range of contracts to users in many jurisdictions.

    ARTIFICIAL INTELLIGENCE

    I’m not as hopeful as John that artificial intelligence can help, as all it does is tell you what’s in a group of precedent contracts. Unless you bring to bear strong editorial control, performed by humanoids, you’re stuck with garbage-in, garbage-out.

    To see how this problem manifested itself in one attempt to use artificial intelligence to create contracts, see the following blog post: http://www.adamsdrafting.com/some-thoughts-on-the-accs-contract-advisor/.

    DOCUMENT ASSEMBLY

    The one technology that would be essential to an ambitious forms initiative is document assembly. If a bar association can’t muster the resources, and the attention span, required to implement and maintain a document-assembly system for a particular forms initiative, that’s a reliable sign that you shouldn’t expect much from it.

    Sorry for droning on!

  4. Joan Bercovitch

    Interesting post, Jordan! I want to respond to Dustin’s challenge to Bar Associations to focus on the changing legal marketplace and help their members to cope successfully. Have a look at the Canadian Bar Association’s Legal Futures Initiative http://www.cbafutures.org. The Trends and Issues paper and online survey may be of interest.

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