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Vol. 29, No. 1

The reorganized bar: an inside look at change

by Kimberly Smith

Blessed by the board, but not yet the membership, Dean J. Zipser awaits the ballots that will be returned in November, hopeful for approval of his Governance Task Force’s recommendations for changes to the internal framework of the Orange County (Calif.) Bar Association. More than three years in the making, the proffers are many.

Not long ago, more than 2,000 miles away, Phyllis Karasov and Richard Pemberton were similarly occupied. After 15 months of drafting and tuning, the proposed changes to the Articles of Incorporation and Bylaws of the Minnesota State Bar Association consumed 50 pages. Their approval—which occurred this past June—will change the entire governance composition of the MSBA.

These are just two in the bar world that have recently proposed changes designed to improve their governance structures. There are many others making changes much less complex, and still others are basking in the glow of their accomplishments. Whatever the changes, the common thread seems to be a desire to increase efficiency, boost participation, and ensure that leaders feel their involvement makes a difference.

Here, courtesy of a few bars that have “been there,” or that are there now, is a candid look at governance changes—both the successes and the pitfalls.

The incredible shrinking board

Allan Fineblit walked in on the tail end of a reorganization that left the Law Society of Manitoba’s board numbering 23—half its original size. The tales he recounts illustrate a board formerly fraught with dysfunction, laboring for hours over “things that appealed to them, like when to change the furnace filters or what to pay a new secretary”—a micromanagement style many can likely identify with.

The mere number of board members, called benchers, posed problems when decisions were necessary; absenteeism at one meeting often dictated that issues be revisited at the next, creating inconsistency. “Even the physical dynamic of so many people in one room allowed many to tune out, or snipe from the back of the room,” Fineblit recounts.

“They recognized there was a problem, but it was beyond the capacity of the group,” he says. “They didn’t know how to fix it.”

One consultant and nearly $100,000 later, Fineblit inherited his CEO position with a refined organizational plan. “We developed a work plan that extended over about two years and included putting in place all of the new governance infrastructure, including statutory changes, policy changes, and a new mission statement,” he says, “along with measures of success, and how performance will be monitored.”

Fineblit cites dramatic improvement and says the success of the new plan is measurable. The board operates in a way that is “more timely, better, and cheaper,” he says. And since the reorganization six years ago, the society has saved so much money it has had the unusual luxury of lowering its dues every year.

Within a set of “executive limitations” under which he must operate, the power and authority to run the organization are Fineblit’s, freeing the benchers to focus on high-level policy debate. He explains, “The new governance policies allow benchers to determine what a successful organization looks like and to hold the organization accountable for the outcomes.”

But Fineblit admits the plan wasn’t without its flaws. For one, the reduction in benchers left the board lacking a disproportionate number of women. The reduction also cost the benchers a lot of their hardest workers, as those newly elected were some of the higher profile attorneys with less available time. Additionally, there was concern among the benchers that they had abdicated their responsibilities as trustees. “From a manager’s perspective it works well,” Fineblit explains, “but it was a shock to them not to have to make tiny little decisions and to focus more on important policy work.”

In response to that concern, Fineblit significantly changed the monitoring reports he provides to the benchers; the reports now give elaborate information about the operation of the society. “What was missing was a level of detail that would allow them to say, ‘I see what is happening,’ ” he says.

Reducing the size of the board is part of the OCBA proposal as well, but with a measure to ensure diversity. If approved, the board will drop from its current 42 members to 25, which will include eight appointed members for the sake of diversity.

“Our size, we believe, is the single biggest contributor to the lack of efficiency and meaningful participation of the board, and the single greatest impediment to our creating a more thriving and vibrant Board of Directors,” states Zipser’s report to the board. “Our size is simply too large to have meaningful discussions and debate of policy… our size inhibits members from expressing their views … and makes it impossible for every board member to be involved with a subcommittee of the board.”

Zipser, president-elect of the OCBA, recognizes that 25 board members is still larger than many governance experts recommend, but believes that a board of this size “would further both diversity and participation, and each member would be able to have a meaningful role on the board and various committees.”

In developing the recommendations, Zipser participated in more than 15 meetings with the full board, analyzing their needs, asking for their comments, and reporting to them the results of their task force’s discussions and considerations.

“We went into this with no preset agenda,” he says, “just that we were going to look at a lot of information from experts in the field, other bars, and other sources. We looked at, generally, how we govern ourselves and if we are set up to have the most efficient and viable board.”

Along with the decreased board size, the task force also hopes to establish term limits for board members, some of whom had served for five straight terms.

No more indifference

It may seem intuitive that decreased size means increased efficiency, but not all governing bodies that are changing in size are getting smaller. Initially, Minnesota State Bar Association board member Steve Cahill thought smaller was better and that the bar’s 80-plus-member board of governors was “too large and cumbersome to be effective or to promote any esprit de corps among the members,” as he recalls in the April issue of the MSBA Bench & Bar.

After a 15-month examination into the entire governance structure, however, the MSBA Governance Task Force proposed doing away with the board but adding a 120-member assembly. But there is some significant shrinking involved. The task force recommended reducing the bar’s governing bodies to two instead of four: A house of delegates with up to 700 members and a general assembly with an unlimited membership count will disappear. Finally, a 14-member council will be added and the eight-member executive committee will be removed.

Phyllis Karasov, co-chair of the task force, says the existing governance structure of four bodies with overlapping authority has contributed to indifference among many bar members, particularly because one of the bodies is seen as more powerful than the others. “There is a perception that the executive council makes the decisions,” she says, adding that there is also a perception that those decisions are rubber-stamped by the board, often when only a handful of members are present.

And that has led to something of a vicious circle. “We had a series of [board] meetings where we could not get a quorum,” Karasov says. “It wasn’t uncommon that by the time important business was to be considered, most people had left.” In addition, the bar’s house of delegates has not convened in years.

Executive Director Tim Groshens believes the recently approved structure will cure the existing structure’s primary weakness of redundancy in the decision making process, making it more timely and efficient. The seeming disadvantage of operating with a larger assembly of 120 elected members will be overcome through the use of assembly committees that will examine different proposals and develop recommendations to the assembly, he says. The current bar year is a transition year, out of fairness to those who had been elected to the board and the executive committee for 2004-2005.

Focusing on committees

Shifting some of the work from the full board to committees and task forces has resulted in more efficient meetings at the Contra Costa County (Calif.) Bar Association. “We are able to ask the task forces and committees to do the work and come to the board with their recommendations rather than have the board research everything that needs to be decided,” says Executive Director Lisa Reep.

To increase efficiency and focus, the bar has streamlined its committees over the past year, Reep says, ultimately reducing the number by more than one-third. Explaining the process, past president Richard A. Frankel says those involved first had to ask themselves, “Why do we need this committee?”

“We had a buildup,” he explains. “We had to decide which were consistent with our mission and re-energize those, creating standing committees and task forces. Others were combined or eliminated.”

Chris Parker, immediate past president of the Toledo Bar Association, reports a similar experience as chair of the ad hoc committee established to assess and restructure the bar’s committees. “We consolidated committees whose purpose had been duplicated and also eliminated committees that no longer served a purpose,” he explains. In combining committees, some seemed to naturally meld, he notes, such as the program and membership committees, which were both primarily designed to provide social and networking opportunities for members.

The resulting committees were then categorized by function: administration, member services, courts, specialty law, professional services, and public services. By doing so, he says, “We wished to encourage collaboration between committees, as well as increase communication between the TBA Board of Trustees and the committee chairs and committee members.”

The process was not without its problems, one of which was a bit of turf protecting, which Parker was actually pleased to see. “It reminded me that people took pride in their work and their accomplishments,” he explains.

Culling the ‘slackers’

The Boston Bar Association opted for yet a different solution to its participation problem—a solution that didn’t alter the governance structure, but did set new expectations and change the nomination process.

An item placed by the bar earlier this year in a widely read Massachusetts Lawyers Weekly column announced, “Slackers need not apply.” The BBA wants involvement from its council members, and with this past spring’s nomination of candidates, those unable to go the mile were identified before they hit the slate.

Would-be nominees were asked to affirm their commitment by agreeing to satisfy clearly defined expectations spelled out in the bar’s “Council Member Responsibilities and Obligations,” a document that details expectations regarding such matters as attendance and board and committee participation.

Regina S. Rockefeller, chair of the BBA Nominating Committee, believes the new process benefits not only those who accept the nomination, but also those who don’t. “It causes people to examine what else is on their plate and whether they can take on the responsibilities of being a council member of the BBA,” she explains. “If they have a new baby, or are the managing partner at their law firm, or have significant charitable or civic commitments, some will say, ‘I would love to do this, but this isn’t the right time.’ ”

M. Ellen Carpenter, the bar’s president-elect, hopes the new nomination process will put into check attendance problems at its council meetings. “The BBA’s council serves as its board of directors, and reflects the diversity of our membership,” she notes. “If a person doesn’t show, we lose that voice—the input of that practice area or minority in the decisions that are made.”

While Carpenter appreciates a council member as a volunteer, she recognizes that it is an honor, not a right. “If you do not attend, you are taking the seat of someone who would show up,” she says, adding that she was puzzled by why council members would feel less than committed.

The answer was one that echoes the Minnesota bar’s experience. “What we found was that there was some concern that the real decisions were being made by the executive committee and therefore the actions of the council weren’t really important,” Carpenter explains. “Part of the reason for that was that the agendas at many of the council meetings primarily consisted of reports from sections on their activities and reports from task forces, which were passive for the council—we sat and listened to reports.”

The BBA has changed its focus at the council meetings over the past two or three years, for other reasons, but in ways that have also increased the activity level. “We’re bringing more of the guidelines corporate boards have to the BBA council—providing council members more of the responsibility for decisions affecting finances and policy,” Carpenter says.

Does change ever end?

The TBA’s Parker notes there was an assumption that when the restructuring was finished, it was finished. “By not revisiting the changes in process, we may have created problems,” Parker admits, emphasizing that this is indeed a process. “Two years later, we continue to tinker with the evolution of the TBA committees,” he reports in the TBA’s monthly newsletter. “It’s too early to determine how successful the restructuring process has been. However, it does appear as if there is better communication and better participation.”

Fineblit adds this advice, “Every culture is different and it is important to adopt a model—not rigidly because that is what worked elsewhere or some consultant says it is right—but flexibly to recognize your own needs.

“Also,” he adds, “remember that it is never finished. Keeping it fresh is very important.”
And to those fearful of change, Tim Groshens actually says it was fun.

New bar year, new rules

Communication and participation of the whole are two qualities in which boards of any size may, at times, find themselves lacking. The Washington State Bar Association may have a solution—a set of protocols that establish standards for how board meetings will be conducted. Proving once again that change never ends, each new bar year brings a new set of rules.

“There was a sense from the board that we could make a more concerted effort at creating a culture of give and take, collegiality, and effective decision making,” says WSBA President David W. Savage.

Each year since 1999, the 16 board members have worked together to draft a set of protocols at the beginning of the term—rules that provide standards for their conduct and parameters in which more productive discussions can occur during their meetings.

The rules, though simplistic in most respects, provide Savage the language he needs to steer a more focused and streamlined meeting. This year’s rules number 16, a few of which are: “Speak only if you can shed light on the subject, don’t be repetitive”; “Tackle the problem presented—don’t make up new ones”; and “Remember to use the parking lot for important but ‘off point’ issues.”

Ellen J. Wallach, a Seattle-based organizational development consultant, facilitated the creation of this year’s rules. “Problems are always difficult to resolve once they occur,” she believes. “Who wants to tell a board member their tardiness has caused others to wait for them? Who wants to tell a board member they have made their point known one too many times? If you establish your definition of professionalism in advance, you can prevent the problem, rather than fix it later on.”

WSBA Executive Director M. Janice Michels emphasizes the necessity that this exercise be done annually, because “each year the board and officers are a unique combination.” By changing the protocols annually to meet the needs of the changing personalities, “we don’t waste as much time and there is more goodwill toward one another,” she explains. “Some boards have members who get angry and stop coming to meetings or don’t want to deal with hard issues—we don’t have that problem.”

Michels also considers the annual development of protocols a means of acquainting newcomers to the board with their colleagues, getting them quickly accustomed to their new roles, and allowing them to settle down to business earlier in their term.