(July 31) – The State Bar of Texas has faced significant criticisms during the past two years – much of it from its own ranks. This occurs at the same time as the legal profession in Texas is going through dramatic changes, as national law firms continue to steal away lawyers and business from traditional Texas-based firms.
Now is the time when lawyers in Texas need guidance from leadership at the State Bar.
The Texas Lawbook interviews Dentons Employment Law Partner Laura Gibson, who was elected chair of the State Bar’s board of directors, about the future of the organized bar, challenges facing the legal profession in Texas and how the practice of law has changed in the state.
Texas Lawbook: What are the two or three biggest issues facing the legal profession right now?
Laura Gibson: In my view, the biggest issues facing the legal profession are lasting market changes that increase competition and the stress associated with the practice of law.
Now, more than any time in the 34 years that I have been practicing law, I have observed that the legal industry is facing unprecedented changes. When I graduated, there was a wide array of legal opportunities.
Typically, the students with the highest grades went to work for the biggest law firms in the city in which they practiced. Lawyers who joined these firms had ample opportunity to get experience that allowed them to learn their craft so that their expertise grew commensurate with their years of practice. So long as a lawyer was working hard and performing, there was little involuntary attrition within a firm.
If one were willing to put in long hours and do high quality work, the majority of lawyers would make partner at the firm at which they started. Those lawyers who didn’t work at the biggest law firms in the city, had plentiful opportunities to work for mid-sized law firms where they could receive the training that law schools were not providing. Very few lawyers started their career by hanging their own shingle and practicing as a solo practitioner.
By the early 1990s, a trend began where some lawyers decided to leave their larger firms and open boutique firms. That added another layer of employers to the hierarchal nature of the legal profession. After the financial crisis in 2008, we saw and increase in price competition among lawyers due to client demands. Clients who historically had only used the larger firms were willing to take their business to the boutique firms where the partners often had the same strong pedigree as partners in the larger firms or mid-sized firms where lawyers had developed strong reputations for excellent skills. As a result, the larger firms had to reduce their rates in order to compete for the client business.
Around this same time, some of the larger law firms increased starting salaries for young associates. With higher salaries, the firms also increased the hourly rates for these associates. That created a situation where clients were not willing to have new lawyers work on their matters because they had no experience and clients did not perceive that they were getting value for their money due to the rate increases of the young lawyers. The effect of this was to deprive new lawyers of an ability to learn their craft with on-the-job training. As a result, young litigation lawyers had fewer opportunities to attend hearings or sit in on depositions. New transactional attorneys were utilized on discrete components of mergers and acquisition transactions rather than learning about the deals on a macro level.
As a result of the combination of increased price competition and higher salaries, we saw more turnover in the profession such that, in many cases, a person who started their career at a large law firm found themselves looking for a job after three or four years at a time when they had very little practical experience. In many cases their lack of experience necessitated that they accept another position at a lower pay level and restart their practice. It also lessened the demand for starting lawyers. In fact, many law firms decided that it was not worth training a young lawyer and modeled their business such that they would only hire lawyers with 4-5 years’ worth of experience.
As a result of these market challenges, it is now more likely that a student graduating from law school will not have a job immediately upon graduation. Law schools are proud if the majority of their graduates have jobs requiring a law degree within 9-12 months of graduation. Additionally, more lawyers are starting their careers as solo practitioners or working in very small firms. As a result, law schools have increased the training they provide to their students so that they are better equipped when they graduate from law school to function as a lawyer without having to be trained by their employer.
It is widely believed by the leaders of both large firms and smaller firms that the 2008 recession served as a permanent game-changer requiring that firms work with greater efficiency in delivering legal services. Now, 10 years after the financial crisis, lawyers have come to realize that price competition is a permanent trend as is more commodization of legal work, fewer equity partners, more contract lawyers and more alternative fee arrangements.
In addition to these challenges, the landscape of Texas law firms as we know it has also changed significantly. Many national firms have entered the Texas market and recruited rainmakers at long established Texas firms to join their ranks. Other Texas firms have not been able to withstand the market pressures and have merged with other firms causing many of our Texas based firms to be part of larger non-Texas based firms. I dare say that if one were to compare a list of the law firms that were in existence when I started practicing in 1985, a significant number of those are no longer in existence.
In short, the practice of law has forever changed as a result of pricing pressure, increased competition and commodization of legal work, all of which have resulted in greater demands on lawyers and law firms.
A bi-product of the extremely competitive market and the stress associated with practicing law is the number of attorneys who abuse alcohol, drugs or suffer depression or struggle with anxiety. In 2016, the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs found that of the approximately 13,000 licensed practicing attorneys in 19 states who participated in the study they conducted, approximately 21% qualified as problem drinkers, 28% experienced mild or serious depression and 19% suffered from anxiety.
More problematic, 75% of the attorneys surveyed skipped the section on drug use leading experts to conclude that they were afraid to answer those questions. In 2017, the New York Times ran an article detailing abuse by lawyers titled “The Lawyer, The Addict” after a drug overdose of a high powered Silicon Valley attorney. Addiction and mental health issues among lawyers is nothing new. With the lasting market changes, it will only get worse.
Texas Lawbook: What role does the State Bar play in helping to tackle those issues?
Gibson: Because it is more difficult to obtain a job with a firm that can provide a young lawyer with the training and mentorship needed in order to excel in the practice of law, the State Bar has provided a number of services to its 102,000 active members.
First, the Texas Bar provides a career center which allows lawyers looking for a job to search available jobs and firms and companies looking for qualified candidates to post jobs. We also provide a page on our website which compiles resources for new lawyers including a link to the Law Practice Management Program. The State Bar’s website also provides “how to” brochures to assist a lawyer in starting their own law firm.
Bar members also have access to “the Knowledge Center” on the Bar website. Current resources available to lawyers include an e-book on tips and strategies for harnessing technology to automate a law firm’s processes and a practical law resource on best practices on drafting, filing and serving deposition notices.
The State Bar also offers our members more CLE options than any other Texas provider by providing over 2,600 hours of online classes in addition to numerous live programs and studio produced webcasts. The State Bar also provides scholarships to those lawyers who cannot afford to pay the cost of such programs.
In the Fall of 2013, the State Bar offered a seminar titled “Alternative Careers for Lawyers: What are my options and how do I get there” which was designed to provide career advice to lawyers followed by individual coaching sessions with the lawyer coach who conducted those seminars. The first such seminar sold out within one day. The State Bar hosted two additional seminars in 2014. All of the seminars were free. Additionally, the State Bar made the seminar available in the SBOT online classroom with free access to all Texas lawyers.
The Bar also offers membership in 48 sections in an effort to help our members become more proficient in a particular practice of law while also networking with peers across the state. Many of our sections provide quarterly newsletters and other online resources for its members. For instance, the Labor & Employment Section, of which I am a member, provides links to jury charges used in recent employment cases.
Also in an effort to both address the needs of lawyers who hang their own shingle immediately after law school graduation, whether by choice or necessity, and to help meet the need for access to justice for low and moderate income Texans, the State Bar launched the Texas Opportunity & Justice Incubator (“TOJI”) in April 2017 under the extraordinary leadership and vision of then State Bar President, Frank Stevenson, with a mission to expand the access to justice to this population while at the same time helping new lawyers establish sustainable practices to serve this population. TOJI is now the largest legal incubator in the United States with 30 attorneys participating in the 18 month program during which they establish their independent practices while receiving training in business operations, marketing and client relations. In exchange, they agree to provide at least 100 hours of pro bono legal assistance during their first 12 months in the program. In 2018, the Texas Bar will receive the ABA Harrison Tweed Award in part for its innovative TOJI program.
With regard to providing assistance to the members of our profession who struggle with substance abuse and mental health issues, the Texas Lawyers’ Assistance Program provides resources for lawyers, law students and judges who are concerned about their own health or that of a colleague. While TLAP has been in existence since 1989, in 2015, then State Bar President, Allan K. DuBois, led the production of a video entitled “Courage, Hope, Help—TLAP is There” to inspire lawyers to seek help. The video does so by using personal stories from lawyers who described their journeys from despair to productive and fulfilling lives after they obtained treatment for substance abuse.
During the 2015-16 Bar Year, also under President DuBois’ leadership, the State Bar raised more than $500,000 for the Patrick Sheeran and Michael J. Crowley Memorial Trust which helps attorneys pay for treatment they otherwise could not afford.
The Texas Lawbook: I hear corporate transactional and business litigators tell me all the time that they have no idea what role the State Bar actually plays in their practice. As a business lawyer, have you heard this from colleagues and what do you tell them?
Gibson: Yes, I have heard transactional lawyers, more so than business litigators, express the feeling that the State Bar does not play a significant role in their practice. In my experience, the extent to which a lawyer utilizes the benefits the State Bar provides to its members is often driven more by firm size as opposed to practice area. In many of our larger firms, lawyers receive training through their firms and access to forms to document corporate transactions and brief banks which set forth applicable law on recurring legal issues. However, many of our members who practice at smaller firms do not have access to a similar knowledge banks.
President-Elect, Randy Sorrels, campaigned on creating a Texas lawyer’s briefcase which he envisions as a document depository of motions, pleadings, briefs and other filings shared by Texas lawyers and indexed and organized by the State Bar so that our members have free 24-7 access to these resources. He also campaigned on working to obtain statewide courthouse access security badges so that the lawyers who go to court on a regular basis can avoid the long security lines without having to go through multiple background checks and applications.
Additionally, even in a big firm, there is a likelihood of a lawyer being presented with an issue in which the lawyer and her firm have not had previous experience. Many lawyers are not aware that on the Texas Bar website our members can access the online library where practitioners can search for forms and CLE papers on particular topics.
When responding to this question, I did a search for corporate topics and found a number of very valuable resources. One in particular deals with an analysis of how recent case decisions interpret standard contract provisions. In an ABA Journal article published in March 2013 titled “Why Lawyers Can’t Write,” the article quoted Bryan Garner, the founder of LawProse and the author of Legal Writing In Plain English, who suggested that as a profession we “uniformly fail to recognize the extremity of [our] own inadequacy” and emphasized that “transactional lawyers go through their professional lives blithely unaware of the landmines they are in advertently planting in their documents—at least until litigation over those landmines ensues.” Having litigated the meaning of contracts my entire career, I can attest that Mr. Garner makes a valid point in that regard.
Many of our lawyers do not know that we have free legal research available only to State Bar members using Casemaker and Fastcase, which enables our members to research Texas and Federal Libraries as well as the State Libraries of the other 49 states.
If some of our members do not feel the need to supplement the legal resources available to them by using State Bar resources, we also offer many other benefits. The Bar has obtained member benefit discounts such as 15% savings at Brooks Brothers and numerous travel, hotel, and other discounted services and products for members. For instance, in Dallas alone, we offer discounts to our members in 585 properties.
The Texas Lawbook: The past two State Bar elections have been fraught with controversy and allegations that the Bar itself has been mismanaged. Where do you come down on this divide and do you think executive leadership has issues and needs to be overhauled?
Gibson: First, the executive leadership did change in 2017 as a result of the retirement of the former executive director and the election of Trey Apffel, who has been on the job since December. Executive Director Apffel is doing an excellent job of traveling the state meeting with our members to listen to our members. Trey has also been fair and impartial in the State Bar elections. I believe that is the appropriate role of the Executive Director and am confident that Executive Director Apffel will continue to remain neutral in President-Elect and director elections.
Second, you are correct that the last two elections have involved more acrimony and discord than ever before. In the 2017 election, President Joe K. Longley ran against State Bar Board nominated candidates, Chad Baruch out of Dallas, and Laura Sharp out of Austin. President Longley ran on a campaign of transparency and fiscal responsibility. In the 2018 election, Lisa Blue campaigned on a message that the State Bar Board is comprised of Bar insiders, while President-Elect Randy Sorrels campaigned on a platform of programs he wanted to initiate to make the lives of Texas lawyers easier.
Although I do not believe that the State Bar Board is made up of insiders or is any sort of private club, I do believe that we can do a better job of encouraging any lawyer who wants to run for the Board to do so. I also think there are always ways we can improve communications and make our Bar more transparent. In that regard, last year, then President Tom Vick, working with the State Bar communications team, issued President’s messages immediately following board meetings to advise our members as to actions taken by the board.
The Texas Lawbook: What are innovative programs or efforts underway at the State Bar that most business lawyers don’t know about?
Gibson: Unfortunately, many business lawyers don’t know about the State Bar programs that I identified in response to your previous questions. As a result, the State Bar will continue to work to educate our members about our benefits. As part of our board members’ responsibilities, they are asked to give presentations within their districts to our members regarding Bar benefits. Those members who attend such sessions qualify for CLE credit for attending.
The Texas Lawbook: As more and more law firms are restructured and managed to operate as a business, is there a danger that we are witnessing the end of law as a profession?
Gibson: Despite the fact that the legal profession is more competitive than ever and firms must operate as a business in order to continue to succeed, I do not believe that the result will be that law will cease to be a profession. In conversations with Roy D. Brantley, a College Station trial lawyer and former State Bar Board member, at the annual meeting in June, I learned that the Brazos County Bar Association started a practice in 2008 where they celebrate Atticus Finch Day. On April 27, 2018, the Brazos County Bar Association celebrated their 10th Annual Atticus Finch Day at which Michael Morton, the exonoree and author of Getting Life: An Innocent Man’s 25-Year Journey from Prison to Peace, spoke. On April 20, Texas lawyers celebrated a statewide Day of Civility, a day which was created to reaffirm the Texas Lawyers’ Creed, which calls for attorneys to conduct themselves with courtesy and professionalism toward judges, adversaries, peers, colleagues and clients.
With the rancor and vitriol which unfortunately has become much too commonplace in our society along with the reoccurring threats to the rule of law, it is imperative that our members increase their efforts to promote professionalism.
The Texas Lawbook: The great Frank Newton once told me that being a leader at the State Bar was a total pain-in-the-butt and that he was tricked into being State Bar president. At the same time, the even greater Linda Klein said being chair of the ABA House of Delegates was one of the most fascinating tasks she ever tackled. Why do you want to be chair of the State Bar board and what do you think you can accomplish in the position?
Gibson: With all due respect to Dean Newton, I think, more than ever, it is important that people who care about our members and our profession step up to become active in the State Bar. I aspired to be Chair of the State Bar Board because I am truly proud to be a Texas lawyer and want to remind our members of how privileged we are to engage in our profession. I also want to encourage our board members to be ambassadors in our community and to remember that they are serving their constituents and, as part of that process, need not only to listen to them but also actively ascertain what the members in their districts want from our Bar.
I also believe that a strong leader in the Chair position of the State Bar will help to ensure that we can demonstrate to the legislature that we can continue to be a self-regulated organization. I have a very good relationship with President Joe Longley and will work hard to support his presidential initiatives and to serve our members.
The Texas Lawbook: What question I am not asking that I should be asking?
Gibson: You haven’t asked about my predictions for the effect of this role on my waistline or my billable hours. Hopefully, in June 2019, I will be able to report a reduction in the former and no change in the latter. I appreciate the opportunity to address your readers.