Vol. 46, No. 4

The Arkansas Bar Association: A case study in major governance restructuring

By Marilyn Cavicchia

It’s often been said that these days, bar organizations need to be nimble in their decision making. A few years ago, as the Arkansas Bar Association looked toward its future, its leaders determined that something was in the way of that goal.

But it wasn’t yet clear what that “something” was—figuring this out took further study and a discussion that was as inclusive as it was challenging. In 2019, the bar decided, via a full membership vote, to approve a task force proposal to shed a layer of governance structure by eliminating the separate House of Delegates and Board of Governors, creating a new Board of Trustees in their place.

Prior to this restructuring effort, two separate groups within the bar were working on proposals that suggested two very different ways to move forward. To help decide what path to take, in March 2018, the bar hired RR Consulting Group, whose principals are Buck Rhyme and  George Brown (who retired in 2017 as executive director of the State Bar of Wisconsin).

“The more we talked about it as a group,” Brown recalls, “the more everybody realized, ‘There’s more here than meets the eye. There are some real governance issues here.’”

Not an internal coup

It was determined that the best approach was to convene a single group to conduct thorough research and discussion and come up with a new proposal. That group became the Strategic Governance Task Force.

Having an outside perspective led to some insights that may not have arisen otherwise, says Karen Hutchins, the bar’s executive director. “Also, from a staffing point of view, it allowed us to voice our concerns equally with the volunteers to see the whole picture,” she adds. “I felt I could express concerns and they were heard.”

Working with consultants also lent a sense of “legitimacy” to the work of the task force, notes Eddie H. Walker Jr., a past bar president and past board chair who was one of two co-chairs of the task force. This was important given the sensitive nature of what was being discussed. “It didn’t look like some internal coup,” he explains. “It was an assessment by people who had no personal interest in the outcome of the analysis.”

What were the problems?

The bar’s membership is around 5,000; its house generally had around 80 members, but sometimes more than 120 (based on the timing of when delegates cycled in and out), Hutchins says. Meanwhile, the Board of Governors had 34 members—and there was often confusion over which decisions should be made by which body.

The persistent questions about whether a matter was appropriate for the Board of Governors or the House of Delegates had a chilling effect on board meetings, says current bar President Paul Keith, who was a member of the Strategic Governance Task Force and had previously been chair of the board. “It tended to cause a bit of reticence in decision-making by the Board of Governors,” Keith recalls. “If there was any question about whether it was within the board’s charge, then that became part of the debate.”

Also, notes Hutchins, maintaining the two governance bodies often meant the staff “had to prepare the same information twice” if a matter was discussed by the board but then needed to be placed on the house agenda.

Both Hutchins and Walker say it was difficult to keep leaders informed—and hold them accountable for what was expected of them—because there were so many and because the house only met twice a year.

Another frequent problem involved legislation, notes Brian Rosenthal, who was president in 2019-2020 and previously a board chair. The Arkansas state legislature is only in session every other year, he explains, so waiting for house meetings—or moving forward with a committee decision but realizing it could be overturned by the house—impeded the bar’s ability to speak on legislative matters while they were still relevant.

For Rosenthal and others, the last straw was when, in the final years of the House of Delegates, it became difficult to attain a quorum. “It became just reporting out items, but we couldn’t take any action,” he says. “So, I think everyone kind of felt like it was time to take a hard look at what had been in place and served us so well for decades.”

Adds Walker, “From a leadership standpoint, it’s really difficult to lead your organization if you’re not even sure if you’re going to have a quorum at your meeting.” 

The best interests of the bar

But it would be a mistake to think that the task force began its work with the idea of eliminating the House of Delegates. “There was no any preconceived directive given to the task force other than to look out for the best interests of the association,” Walker says.

Then-President Suzanne Clark appointed the 27 members of the task force starting from a list of names submitted by house members and then using her own judgment, based in part on diversity in terms of geographic location, practice size, race and ethnicity, and other factors, Walker says. It was in the course of the task force’s ongoing discussions that the idea of the governance restructuring came about.

Every task force member pledged, in writing, to think only of the bar’s best interests, Rosenthal and Walker recall, and not their own benefit or that of their law firms. “They further pledged to remain candid and civil during the course of the discussions,” Walker notes, adding that this combination of candor and civility helped the group to be “very open and straightforward about our discussions and our concerns and our debates.”

A visual sign of support

One technique that Brown and Rhyme brought to the process is called Fist to Five, in which participants each raise a hand in a way that signals how much they like or dislike an idea that was just discussed. The responses range from a fist (meaning that someone is completely against the idea) to the hand with all five fingers extended (meaning they enthusiastically support the idea). 

This made it possible to “read the room very quickly,” Hutchins says, because it was easy to see the exact level of support, not just simple yeses and no’s. In a room full of 27 lawyers, Rosenthal adds, it was helpful to be able to ask for everyone's opinion and immediately see it.

It also helped steer the conversation, Keith says. “If Eddie was chairing the meeting and he saw a bunch of fists in the air, he knew he needed to go a different direction,” he explains.

In a little over a year, the task force held three formal meetings (one of which lasted two days), as well as smaller meetings for working groups assigned to various aspects of the possible restructuring. Throughout that time, the consultants interviewed a variety of stakeholders within the bar. Task force members were assigned groups of delegates and board members to keep informed, and both Walker and the consultants reported at board and house meetings.

In addition to the Fist to Five method of seeking feedback, Brown and Rhyme asked each task force member whether they had been heard, and whether they felt the group was on the right path. At the final meeting, the task force members, who had been divided into three groups, were then asked to hold up a piece of paper on which they had written what they thought was the best way forward.

“There was amazing consistency,” Rosenthal recalls. “All three [pieces of paper] said, ‘We need to go to one body.’”

Voting themselves out of a job

The governance restructuring required amending the bar’s constitution, which in turn required a vote by the full membership—and it was the House of Delegates who needed to first approve putting it up for a vote.

“So,” Walker says, “we were essentially asking members of the House of Delegates to vote themselves out of jobs.”

At that house meeting, in June 2019, Walker says, some delegates did express regret at the prospect of losing their leadership positions (which, he notes, some may have been using as a resume builder). But that wasn’t the strongest objection.

 “My sense,” he says, “was that there was considerable concern about the possibility of concentrating too much power in the hands of too few people.”

The lawyer population in Arkansas is largely concentrated in two metro areas: Bentonville (home of Walmart) in the northwest, and Little Rock (the capital) in the center of the state. Part of the bar’s culture has always been that it’s a statewide organization with representation for lawyers in less populated areas as well as in those two regions.

That concern, and that culture, led to a house motion to increase the size of the Board of Trustees from what the task force had proposed, increasing to four what had been three trustees from each of the state’s 15 districts. This means that, including officers, the Board of Trustees would have a total of 67 members. That’s quite large, Rosenthal concedes, “but it was very important for our people to feel like we had statewide, fair representation at all levels, so everybody agreed with that.”

Also making the idea more palatable was a provision to preserve a tradition that was meaningful to many longtime delegates: Once they had served for six consecutive years, they became tenured delegates, an honorary position that gave them the right to speak on the floor at any house meeting. The tenured delegates have been made tenured trustees, and new tenured trustees will be added in the years to come.

90% approval from members

The house-approved proposal was then posted on the bar’s website and, after a 30-day comment period, the full membership approved it as well, with 90 percent of voters in favor. Brown, who recalls from his time as a bar executive how some members tend to resist change, notes that much of the hard work that the Arkansas Bar Association did was after he and Rhyme had helped put together the proposal and completed their time as consultants. It was no small feat, he says, to achieve such strong member support for a major governance change that required amending the constitution.

“If you have strong leadership,” he believes, “things can work to better the organization.”

Hutchins attributes the overwhelmingly favorable vote, in part, to the transparency of the process; she knows of another organization (not a bar) that underwent a similar effort, spending years on it, only to have it fail at the end because members felt as if they’d been kept in the dark.

The new governance structure officially debuted in June 2020 at the bar’s annual meeting. After an initial learning curve with Zoom, Hutchins says, the board meetings have been “very effective, very efficient, and very well attended.” The bar is still working out how often the Board of Trustees will meet, she adds; most likely, meetings will be quarterly with additional meetings as needed.

Restructuring brings additional benefits

The virtual board meetings were prompted by the pandemic, but Keith says learning how to meet this way has had benefits other than health and safety. The longest board meeting thus far has been about four hours, he says, whereas in-person meetings used to take part of one day and part of another, to allow for travel. Walker notes that eliminating the need to travel can lead to more diverse board participation in terms of geographic area and firm size, since it’s hard for solo and small-firm lawyers to take time away.

In conjunction with the restructuring, Rosenthal says, the bar made some other changes that allow it to do things differently. “It gave us an opportunity, as we moved to this new organization,  to look at some of our procedures,” he says. “It was fortuitous.”

For example, any special meetings will now be much easier, thanks to a provision that they can be held virtually. Before, if the house needed to meet outside of its usual schedule to decide on a policy matter, Rosenthal explains, it had to convene in person, typically in Little Rock, which meant some delegates would have to travel five to seven hours for a meeting that might only last 15 minutes.  

Another way the restructuring has been fortuitous at a challenging time, Hutchins says, is that it did away with the problem of having one governance body that was much more in tune with the bar’s finances than the other. While the House of Delegates received financial reports, she explains, the infrequency of their meetings created gaps in their understanding. “So, while they were making big policy decisions that affected financials, there was a little bit of disconnect,” she says. “I’ve noticed right away with the Board of Trustees, it’s all connecting for them.”

The bar also took the opportunity to do a major refresh, with a new logo and rebranding, and a pared-down mission statement in keeping with the slimmer governance structure and resulting clarity in what is expected of the bar and its leaders.

“Our mission statement was just so broad, until it was impossible to really get a handle on what it was we needed to be focusing on,” Walker says, noting that the bar went from a 175-word statement to one that has only 32 words.

The pandemic, along with more experience with the new structure and settling in with new technology, continues to uncover other small changes that need to be made, including several that will come up for a vote in April 2021. While it was initially daunting to amend the bar’s constitution, “We have gotten better at it,” Keith says, “which is good because you don’t feel the need to overhaul it. You see something that needs to be clarified, and you clarify it.”

Board seats are a hot ticket

To establish a system where the new board could have the benefit of institutional knowledge, while at the same time not shutting the door on candidates who didn’t get a seat the first time around, those who were voted onto the initial Board of Trustees were randomly assigned a term of one, two, or three years—via names drawn from a hat, on Zoom. Trustees will also be limited to two consecutive terms (though they can run again later).

There were multiple candidates for all board positions, Rosenthal notes, with 20 candidates vying for nine seats in one of the three regions of the state. It was gratifying to see this level of interest, Keith says, and it helped verify for him that the governance restructuring was not something that only a small group of leaders cared about.

“We had a really good, diverse group that ran for the initial Board of Trustees, which tells me that they knew about it, they were interested in it, and they wanted to be part of it,” he says. “That, to me, is the barometer of how interested people are."

For further reading

All the leaders we spoke with credited consistent, clear communication as being key to this successful restructuring effort—and they said Publications Director Anna Hubbard was instrumental in helping them reach members, including through frequent coverage in Arkansas Lawyer. For example, see:

Other bars that have a house of delegates and are considering making a change may find this article helpful: “What about our association’s house of delegates?” (MultiBriefs, September 16, 2020). Robert C. Harris, CAE, walks readers through the pros and cons of having a house of delegates or other large, representative body, shares some alternatives to consider, and offers tips for how to broach what can be a delicate subject. Harris, principal at The Nonprofit Center, is a frequent faculty member at the ABA Bar Leadership Institute.