When it comes to any discussion about the future of the legal profession these days, the pessimists always have an ample supply of statistics at the ready.
Even the boosters can’t resist trotting out the grim stats now on occasion. In his June column in Bench and Bar, Richard Kyle Jr. — the outgoing president of the Minnesota State Bar Association — pointed to the alarming slide in the organization’s membership, which, following a long, slow decline, has dropped by 7.3 percent since 2011.
Explanations for that are considerably less elusive than the solutions. Law school enrollment is at its lowest levels since the 1970s. Baby boomer lawyers are heading into the sunset. Technological outsourcing is rampant. Heck, it’s been over two decades since “L.A. Law” went off the air and the networks have yet to program a suitable replacement/industry recruitment tool.
If you’re looking for more doom and gloom, don’t bother with Mike Unger.
After three decades in the trenches as a personal injury practitioner, Unger, the MSBA’s new president, is no Pollyanna on the state of the legal profession or, for that matter, the state of the bar association. For all the daunting challenges, however, Unger remains bullish on both.
On Wednesday, Minnesota Lawyer sat down with Unger in his office on the 49th floor of the IDS Center. A solo practitioner since 2005 (following two decades at Twin Cities firms large and small), Unger shares the office suite with several other attorneys and two retired judges.
It’s an excellent view — downtown Minneapolis in the foreground, the Mississippi River snaking in the middle distance, and, to the east, the hazy profile of downtown St. Paul. Unger, a lifelong Minnesota resident, appreciates the vista. Working in the office one Saturday, he discovered that he could use a telescope to watch a Gophers football game on the big screen at TCF Bank Stadium.
Unger was sunny and congenial, if a bit distracted by the lingering details in the personal injury case headed to trial in Hennepin County District Court next week. His client, the celebrated playwright Marsha Norman, is suing the Guthrie Theater over a fall from the “poorly lit ramp” during a tour of the facility.
The interview has been edited for length and clarity.
(((Q&A FORMATING: PLEASE BOLDFACE ENTIRE QUESTIONS. THEN BOLDFACE UNGER’S NAME BUT LEAVE REST OF ANSWERS IN NORMAL BODY TYPE.)))
Minnesota Lawyer: How do you see your role as president of the MSBA?
Mike Unger: To be a spokesperson for the bar and to marshal the volunteer activities that help members accomplish the things they seek to do in the bar. Should we change the legal research tool the bar offers? Should we offer some new software management tools? As president, I’m responsible for guiding these conversations and decisions.
ML: So you don’t have your own 10-point plan?
Unger: In a volunteer organization — where the volunteer leadership changes every year — one of the dangers is that when you become the new leader you want to have a legacy. You end up with pet projects, so you can say, ‘This is what I did.’ The problem, from an organizational standpoint, is that you’re constantly whipsawed from priority to priority and project to project.
I’ve seen the negative side of this cause-of-the-year approach. Years ago, I was president of University of Minnesota Alumni Association, which is a much larger organization than the bar association. The most involved alumni are often high-profile individuals who are used to calling the shots. They love to take control and they want to leave their mark.
The best way to serve the organization is not to push your own favorite project but rather provide good leadership and stewardship for whatever is happening organically within the organization. That’s certainly my philosophy.
ML: So you endorse the anti-alpha dog approach?
Unger: Yeah, I think that’s right.
ML: One of the big issues for the MSBA is declining membership — both over the long term and, in particular, since 2011. How can you change those numbers?
Unger: It’s not clear to me whether the recent drop off is a trend that will go into the future, or a delayed response to the economic challenges of the past few years. Just like the country itself, the profession has been slow in getting its sea legs back. I’m hopeful that as we continue to make progress our membership will stabilize or rise slightly.
ML: What percentage of lawyers in the state are dues payers?
Unger: Until maybe seven, eight years ago, we had close to 70 percent of all the license practiced lawyers. More recently, we’re closer to 60 percent.
ML: The economy aside, is there a generational factor that explains the decline?
Unger: That’s one of the theories but we don’t have good data. We want to move beyond anecdotes and find out. Part of it is economic but part of it is a demographic shift. Our largest cohort in the bar — the baby boom generation — is moving into retirement.
The non-private practice portion of the bar has been growing. Traditionally, private practitioners were the bulk of the profession and our model was designed to address their needs. The ABA has been looking at this nationally and they’ve been able to document the shift in terms of how many lawyers are in the private practice versus all the other forms of employment — in-house, corporate, non-profit, government, things of that sort.
ML: What does that mean for the MSBA?
Unger: They [public sector and non-profit lawyers] have different needs. For example, a really tough nut to crack over the years has been government lawyers. Government lawyers tend not to join the bar because the government won’t pay for their dues. Also, they have a single client, so they’re not looking to expand their client base. They don’t necessarily see the value in building their reputations and networks through bar association activities. The question is what the bar can do for those folks?
ML: What can the bar do for them?
Unger: As a private practitioner, I don’t have a lot of insights. We can offer things of value — CLE programs or professional development information — but the bottom line still might be price sensitivity.
ML: Does the MSBA need to charge those lawyers less?
Unger: I think we’ll look at our dues model to see whether or not there are ways we could offer some other levels of membership.
ML: Is there any interest in making bar membership mandatory?
Unger: Occasionally, people have suggested that. There are advantages and disadvantages. The advantage is that you get rid of the free riders. The truth is, we do a lot of things at the Legislature and with the courts that benefit the profession and the non-joiners can get a lot of the benefits without paying for them.
The argument for the mandatory bar is that you eliminate that. The drawback is that you lose independence and the court calls all the shots. In states with mandatory bars, there have been some significant conflicts.
ML: So the mandatory bar won’t be coming to Minnesota?
Unger: It will only happen if we’re unsuccessful in maintaining the voluntary bar model. I like the voluntary bar model. It makes us think about the needs of our members all the time. If everything is mandatory, you become more like a government entity. You don’t have that same customer satisfaction impulse.
ML: You’ve taught as an adjunct professor at the U. What have observed about the new crop of lawyers?
Unger: Some of the generalizations about the millennials have merit. As a group, they tend to be more conscious about lifestyle choices and they want to draw certain lines. They don’t want to work all the time. That’s a different view point, and I think it’s healthy and smart.
There’s also a much greater reliance on technology for connections and networking and information gathering, which displaces some of what a bar association has provided historically. We have to do a better job of convincing millennials about the value of bar membership.
ML: You wrote in a blog post that when you started out in law, the idea that cases should be decided on merits, not technicalities, was a bedrock principle but now that principle seems to be fading. Can you elaborate?
Unger: As a practicing lawyer, my sense is that there is an increasing interest on the part of the courts to manage litigation. So today, a trial lawyer has a lot more rules to comply with. Until a couple of years ago, you could have civil litigation without ever filing. For reasons that are somewhat of a mystery to me, the court felt it was important to get all these cases filed. Now there’s a new rule: You can run your litigation for a year but if you don’t file within a year, your case will be deemed dismissed.
Once you enter the system, you have a lot more rules and deadlines to prepare and file documents and pleadings. The effect is a much more technicality-oriented approach — you must file by this or that date or you lose your rights. The cardinal rule used to be: We want matters determined on the merits. Now there are more possibilities for rules and technicalities to get in the way of that.
I don’t want to sound too negative. This is a complex issue, with pros and cons, and I understand why the courts need to increase case management. I get it. But over the course of my career, I’ve gotten the sense that we’ve drifted away from the ethic that used to pervade — the focus on having cases decided on the merits — with this emphasis on case management and docket flow.
ML: Can that be reversed?
Unger: That’s still a question. We’ve only had these new rules in place for the last few years. I think we have to live with them for a few more to see how they work. It’s really a matter of prudence and balance. But when the rules do become too hyper-technical, we need to share our stories with one another and not simply gripe about it. We need to identify where there are problems and bring them to the court’s attention.
ML: You’ve also expressed some concerns that the bar association lost sway with judiciary.
Unger: A few years ago, our participation had become so limited that we didn’t even talk about it in our marketing materials. We didn’t talk about being advocates with the courts. We only talked about being advocates with the Legislature.
One of the reasons we fell out of the role of advocating to the courts, our procedures were too cumbersome for a 60-day comment period. We have recently repositioned so we can be more nimble and able to comment on proposed rule changes as they arise.
ML: You’re a big champion of pro bono work. Do the changes in profession threaten to reduce the involvement of young lawyers?
Unger: I hope not.
ML: But it’s a harder hustle these days, right?
Unger: There’s truth in that. But sometimes, the increased competition means that people don’t have enough work and maybe that extra time opens opportunities to assist folks who can’t afford representation. From a lawyer’s viewpoint, that can be super beneficial. You learn a tremendous amount. You make contacts. You establish a reputation. In the long run, all that can redound to your benefit.
ML: Has that been your experience?
Unger: Yes. For example, I handled a multiyear pro bono environmental case for an underprivileged neighborhood in St. Paul [involving the former Gopher State ethanol plant on West Seventh Street]. After that I was hired by a more privileged neighborhood that was actually in a position to pay me. I’m sure the reason they came to me was because they knew about the success I had with the ethanol plant.
ML: What’s the toughest case you’ve handled?
Unger: When I was a young lawyer, I represented the victim of sexual abuse in a psychiatric ward in a major Twin Cities hospital. The victim came to me seeking compensation. I was worried about the effect of litigation on her health and her recovery. So before I accepted the case, I consulted with her psychiatrist, who was quite encouraging and said this could be a good thing because it would allow her to escape that victim mindset and gain control.
I thought that seemed logical, so I agreed to take the case. I came to learn that I understood more about the effect of litigation on an individual than the psychiatrist ever did — and that I gave way too much deference to the psychiatrist’s theoretical views about the value of proceeding with litigation.
ML: What happened?
Unger: We got a good settlement. But my client’s deposition was taken by a very aggressive defense lawyer, old school. His approach was to cast doubt on whether or not she was a victim, to ask whether she had invited this. It was the most difficult court proceeding I ever had to sit through.
ML: So what did you take away from that?
Unger: I learned was that sometimes the cure — monetary compensation — is worse than the disease. Perhaps it’s more important that the victim focus on personal well-being instead of seeking the legal remedy. That can be a very difficult thing for a plaintiff’s lawyer to see when there’s the potential for a large claim and the opportunity for a handsome fee.
ML: So in retrospect would you have done something different?
Unger: Definitely. I would have counseled the client against litigation.
ML: Legally speaking, what was your most challenging legal case?
Unger: I once handled an ERISA [Employment Retirement Income Security Act] class action on behalf of the employees of a corporation. They lost money in their retirement account when the corporation was purchased and the acquiring corporation merged the accounts.
It was difficult from a legal standpoint. ERISA is very inhospitable to individual employees; the rights to make claims are highly, highly limited. I was outside of my usual realm of personal injury and had to learn this arcane body of law. I had to be very careful about positioning the claim.
ML: Your only ERISA lawsuit, I take it.
Unger: Yeah, a one and done deal. It was the biggest single attorney fee I’ve earned, though it went to the benefit of my firm, not me.
ML: What case gave you the greatest satisfaction?
Unger: A lot of my personal injury clients have had their lives changed by successful settlements, so it’s hard to pick one. I’ve had clients with very severe injuries — brain injuries, spinal injuries — who have been able to create a decent life for themselves. As a category, those cases are super satisfying.
Outside that category, I once represented black firefighters in a case that challenged the city of Minneapolis for failing to provide fair promotional opportunities. My clients included several African-American firefighters who had been unable to advance to the next level due to the system that was in place. We were able to convince the city to change their evaluations, which qualified nearly a dozen black firefighters for promotion. One of those clients became the first black fire chief in Minneapolis.
ML: Do you have a favorite lawyer movie?
Unger: It’s either “To Kill a Mockingbird” or “The Verdict.”
ML: “The Verdict” — that’s the one where Paul Newman plays the boozy personal injury lawyer.
Unger: There’s a lot I could relate to [laughs]. He’s this broken down, possibly alcoholic character who gets a big case. He is on the verge of blowing it and then he pulls it together and it becomes a vehicle for his personal redemption.
ML: Favorite lawyer novel?
Unger: “To Kill a Mockingbird.”
ML: Have you read the sequel? It’s a bad Atticus Finch story, right?
Unger: Not yet. I’m not as disturbed by that as some people. The original story was a child’s view of her lawyer/father, so of course, it’s going to be a much more idealistic. As she becomes an adult, she sees he’s like everyone else in the South, that he’s affected by the prevailing culture. That seems consistent with the real world to me.
ML: Who are your legal heroes?
Unger: I had really good mentors at my first law firm — Hvass, Weisman & King. They were good advocates, very ethical, very public spirited. They had a lot of influence on me. On a national level, people like Morris Dees and Clarence Darrow. As far as judges go, there are a lot of great ones to pick but I don’t think I’ll get into naming judges. That’s a hazard.