Feeling the pinch: Bar associations look more closely at age demographics, their future

Volume 40 Number 4

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It’s taken a few years, but Heather Folker, communications director at the Colorado Bar Association, says she has become a bit of a numbers person.  So, too, she says, have many of the bar’s administrators and Board of Governors members.

“We didn’t use to track our age demographics, even five years ago,” Folker says. “Now, we track it every year. It’s a concern for us.”

And what those latest numbers show in Colorado is a small uptick in the percentage of members over age 45—often considered the midpoint of a lawyer’s legal career—combined with a small decrease in the number of new, younger members joining the bar. It is a scenario many bars face, and one that the Colorado bar is currently tackling in-depth, in what may be the most extensive long-term strategic planning process in its history.

It is a process that Folker calls both exciting—and challenging.

“Our operating costs continue to go up, so we have to be thinking about that a lot,” she says. “We’re spending way too much money on projects that don’t generate a lot of involvement. There are going to be some changes, and I’m sure some people are not going to be happy.”

Colorado bar leaders aren’t the only number watchers, both inside and outside the organized bar. They also aren’t the only ones talking about changes, as discussion about the aging of the profession, the decline in the number of law school graduates, and the challenges they present to bar associations creeps closer to reality. And while some say that bars have been slow to confront the issue, more associations now seem to be moving forward with the dialogue and the actions to address the demographic elephant in the room.

There is genuine concern in the legal community about the future aging of bar associations, but some also see silver linings in the demographic clouds. Whether it’s due to softer financial portfolios, healthier baby boomer minds and bodies, or just a desire to keep the legal juices flowing beyond the average retirement age, many in the profession also see opportunities for older lawyers to continue to be a significant part of their bar associations.

Of course, not every older lawyer who remains in practice enjoys such vigorous health. As lawyers continue to age in a persistently down market, many bar associations struggle over how to protect the public's best interests while also preserving an impaired lawyer's dignity. Look for more in-depth coverage of this reality of an aging profession in an upcoming issue of Bar Leader.

‘Most lawyers are not aware of change’

“Bar associations can't make more people go to law school, and they can't stop people from getting old, so they'd better choose a different goal than growth and a different metric than size,” says Jordan Furlong, a legal industry consultant for Edge International in Ottawa, Canada.

And as many indicators continue to show, people are continuing to rapidly move into retirement age, while also pulling back from the legal profession. The most recent U.S. Census statistics analyzed by the Weldon Cooper Center for Public Service at the University of Virginia show that the number of Americans age 60 and older will jump from about 57 million in 2010 to 74 million in 2020 and 86 million in 2030—less than 15 years away.

At the same time, law school enrollment fell 4.9 percent in 2015 compared to 2014, with 54 schools reporting declines that exceeded 10 percent, according to ABA statistics. NALP statistics from 2014 show that there were 6.5 percent fewer law school graduates than a year earlier, and while more graduates were employed than in 2013, percentage-wise, the number of jobs was down by 1,200, indicating fewer positions available.

“The profession is coping with extreme change, both in severity and speed, but most lawyers are not aware of it,” says veteran attorney and legal industry consultant Gerry Riskin, founding principal and chair of Edge International. “And if lawyers don’t know about it, what about bar associations? The bar association, like its members, is a victim of its past.”

Lawyers, indeed, have been part of the problem when it comes to managing and dealing with change at the association level, according to Riskin.

“Executive directors are dealing with volunteers who have the mindsets of lawyers,” he says. “The pattern of lawyers is not to be business-oriented, but to be lawyer-oriented.”

Edward Patterson, assistant executive director of the Alabama State Bar, recalls wanting to bring in well-known legal and corporate futurists a decade ago to talk to bar leaders about trends and the future. “I was told, ‘No, we don’t need that. That’s touchy-feely,’” Patterson says. “Now, it’s not so touchy-feely. I think it scares people when we have these discussions.”

Echoing an increasing concern raised by some bar leaders and observers and consultants such as Riskin and Furlong, Patterson and Folker say that the annual turnover among bar presidents and the lack of continuity in their goals and objectives has often come at the expense of addressing long-term association growth and development issues, such as the demographic challenges facing bars now.

Patterson also frets about how members of mandatory bars such as Alabama’s view the functions of the association, saying that low service expectations from bar members often lead to “an apathy and lethargy that has kept us from being more creative.” He points to a recent episode when several Alabama legislators proposed using state bar funds—collected entirely from fees and charges on lawyers—to pay for other programs in the state. While the effort failed, Patterson says that cash-strapped states like Alabama could easily strip state bars down to regulatory-only agencies while still collecting fees from lawyers.

“We should begin to act as if we are a voluntary bar and offer creative services,” he believes. “I wonder if in 10 years, we’ll still have mandatory bars?”

Bars reach out, try new things

Despite the challenges, Alabama and other bars are pressing ahead with programs and plans to address the demographics dilemma. Patterson is particularly pleased with the bar’s Leadership Forum, aimed at new lawyers. Now in its 11th year, the award-winning program has produced more than 300 graduates, with Patterson estimating that about a third of the 74-member Board of Bar Commissioners are Forum alums, paving the way for new bar leadership.

At the other end of the age spectrum, the bar is making plans to restructure a dormant succession planning task force, while a recently launched solo/small firm section has quickly attracted more than 800 members—many of them older members, Patterson adds.

At the State Bar of Wisconsin, which has seen some recent declines in new members, the bar is actively promoting its upcoming Leadership Development Summit for newer attorneys, according to Annette Ashley, the bar’s member services director. Four summit attendees now sit on the bar’s Board of Governors, she says.

The bar has also strengthened its service offerings for solo and small practitioners, Ashley says, while also making plans for programming to address increasing practice transition interest from members. While there is no specific committee or task force aimed at the future, the bar regularly brings in speakers to address such topics, she adds.

In Colorado, while the bar continues to develop a strategic plan for the future, Folker says, a new group aimed at senior lawyers, Gray Matters, has generated plenty of interest, offering social and networking opportunities while also building interest in a once-dormant practice transition program and pro bono and mentoring opportunities.

The bar has also stepped up its outreach efforts to new attorneys with an assist from technology, Folker adds. Using a database it shares with the Colorado Supreme Court, the bar now automatically offers free first-year membership to new lawyers who have recently taken the Supreme Court’s mandatory professionalism course.

Although technology provided the foot in the door, Folker says, what has really helped attract new members is the personal phone call that members of the bar’s Young Lawyers Division have made to those prospective members. “We have had a lot of people say, ‘Wow, somebody actually called me and wants me to join,’” she notes. “They wanted that personal touch and that outreach.”

At the Washington State Bar Association, more resources are going into succession planning and similar programs aimed at older lawyers, according to Executive Director Paula Littlewood. That comes after surveys in 2012 found that 71 percent of bar members were over age 50, with nearly half of all members saying they were contemplating retiring soon.

At the other end, the bar has increased efforts to add more young lawyers into its management structure—at least six Board of Governors members are under the age of 40. Littlewood also sees the WSBA’s well-known limited license legal technician designation as a pragmatic way to address legal needs and attract young members—even if they aren’t lawyers.

“The reality is that there are going to be a lot less lawyers 15 years from now,” LIttlewood believes. “Not every medical problem needs a doctor. Not every legal problem needs a lawyer.

“Our message is: ‘Get in the water and have control over it. Look at the demographics and new technology.’ I’ve said that the tidal wave of change isn’t coming—it’s here. I choose to surf it.”

Older members as an important resource

To retired Arizona state judge Louraine Arkfeld, chair of the ABA Senior Lawyers Division, the wave of change does not necessarily mean that older attorneys are out to sea. The baby boomer generation, which is demographically responsible for the large number of potential retirees, “is not one that is interested in sitting around,” she says.

“I’m more active today than when I was some days on the bench,” Arkfeld says. “Yes, it’s a challenge for bar organizations to meet all the different needs of its members. But you have a population of people [older attorneys] who want to stay engaged. I still want to be engaged with the people in the legal community. It’s hard to get that somewhere else.”

Arkfeld says she was happy to see more discussion at the recent ABA Midyear Meeting in San Diego turn toward keeping senior lawyers more active, not only as practicing attorneys, but as association members.

In fact, Arkfeld herself spoke during a "Graying of the Profession" program at the 2016 Midyear Meeting of the National Conference of Bar Presidents.

“These are opportunities for bar associations. You have people who have been involved in bar activities for most of their careers,” she says. “This is a resource. This is a treasure for bar associations.”

Ashley in Wisconsin and Patterson in Alabama each say they’ve seen significant numbers of members in their 60s and 70s who are continuing to practice—sometimes out of economic necessity, but more often out of a desire to stay active.

“The chair of our Solo and Small Firm Section [Sam Irby] is 72 years old, and he’s going like gangbusters.  He doesn’t need—or want—to retire,” Patterson says. “No one wants to be recognized as old or feel replaced. They want to remain active and vital in different ways—re-tooled, I guess.”

Alabama is also looking into ideas that would call on older lawyers for an incubator program working with law school students, as well as getting them more involved in mentoring programs through local bar associations.

What does the future require?

While Furlong and Riskin remain concerned about the future of bar associations amid demographic upheaval, each also remain optimistic that associations can persevere—although they might look a bit different.

“It's not just retirement and succession planning for older lawyers that's needed; it's also starting your own business and learning the new tools of the trade like process improvement and knowledge engineering for younger lawyers,” Furlong says. “They need to offer pragmatic programming along the entire demographic spectrum. Bar associations need to lose this fixation on black-letter law CLE and start helping lawyers stay in business.”

Adds Riskin, “I’m optimistic about what lawyers are capable of doing … but, sometimes, we forget to bring in someone who can help us. We have to know our limitations and get expert help where we can.”

And right now, he says, that could include someone who knows a little bit about demographics, technology, communications—and the needs of lawyers of all ages.

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