May/June 2000 

Adding Value

by Wood R. Foster Jr.

The more I have learned about the state of our profession during my term as president -- and it has been a learning process -- the more I have come to believe that the manner in which legal services are delivered to the public is changing at a pace much faster than most of us have realized.

In particular, three factors seem to be driving the accelerating rate of change:

• Internet technology
• Multidisciplinary practice
• The de facto demise of "the unauthorized practice of law"

I have touched on these topics in previous columns, and I do not believe I am overstating their importance to our collective professional future. Regardless of what Minnesota or the ABA does with Rule 5.4, MDPs are here to stay, and may proliferate significantly during the next decade. The practice of law over the Internet (we really have no way of knowing whether this is being done by lawyers or nonlawyers) is in its infancy. Its sophistication will increase dramatically during the next few years.

As I think about the future, the term "adding value" repeatedly comes to mind. I think that in order to survive as a viable and distinct profession, lawyers are going to have to focus very carefully on how they add value to their clients, to their communities, and to their profession.

Many sophisticated documents that were previously available to the public only with substantial effort are now easily available with no cost and little effort on the Internet. It is easy to imagine that fairly sophisticated commercial transactions will soon follow patterns set by freely distributed information, with lawyer involvement being kept to a minimum.

Take the example of a commercial lease. Does anyone really have trouble visualizing a Web site that provides a sophisticated questionnaire concerning the transaction, then proposes a variety of carefully tuned provisions for the lease? Does any one doubt that an intelligent real estate broker or an intelligent landlord can and probably will use information like this to do 90 percent of the work now done by the real estate lawyer? While the prudent user of such services will take the "finished product" to a lawyer to get a stamp of approval, the lawyer will have been eliminated from the initial consultation and drafting process, and will in effect be only a backstop for the electronic scrivener.

In this context, it seems to me, lawyers will have to convince their clients -- and the public -- that lawyers add value in ways that software cannot. This will have to be a very intentional effort, and to some extent a collective effort. Each of us had better start thinking about this now; as a group, we are notoriously slow to react to significant change.

One of the wonderful things about our profession is that it positions each of us to add value to our community in a myriad of ways. We are uniquely positioned, for example, to monitor, nurture, and improve our system of justice. Our training equips us well both for public office and for community service on public and nonprofit boards and organizations. No group is better positioned than lawyers to shape the fabric of our laws and processes to meet challenges as they arise. And no group or profession takes more seriously than lawyers do its obligation to provide public service in one form or another to those who are least capable of protecting themselves in our system of justice. I genuinely believe that Minnesota lawyers will continue to lead the profession nationally in terms of public service.

If each of us exercises our talents and gives of our time to the public good, I firmly believe our lawyer/client relationships will be commensurately strengthened. While the problem of lawyer image is intractable, there is no substitute for competence, integrity, and dedication to show the way for future generations of lawyers and clients.

More than ever, lawyers need to steward the legal profession itself through difficult times. I have been on the soapbox at law firms and around the state lately, urging lawyers to recognize and address the strains on our profession. I have written previously about fragmentation, polarization, changing economics, and the "businification" of the law; if we want the profession to continue its honorable (if sometimes tattered) tradition, we cannot simply stand by as observers, reacting to changes after the fact.

If I have tried to do anything this year, it has been to instill in lawyers a heightened sense of "profession-ism" which is a little different than professionalism. We need to see ourselves as part of a profession that needs our attention. Each of us, from time to time, must step up and take our turn at leadership, whether by becoming active in a section or committee of the organized bar, by serving on a law-related state board or in service to the law schools, by being active in the ABA or a district bar, or even by service in the political arena. As we do these things, we must constantly be alert for developments that threaten our core values -- independence, absolute loyalty, confidentiality, competence, and public service. I personally believe that the organized bar is one of our best resources for collectively addressing the challenges that face our profession.

I feel remarkably lucky to have had the opportunity to serve as president of this organization. I have enjoyed every second of my service, and would gladly do it again. My successor, Kent Gernander, has devoted hours and energy that are almost beyond belief to both the Association and our profession. We will all be richer from his leadership, both past and future.

I hope each of us takes seriously our obligation to "add value." Nothing less will do.

Wood R. Foster Jr. is president of the Minnesota State Bar Association. A partner in the firm of Siegel, Brill, Greupner, Duffy & Foster, PA, he concentrates his practice in commercial litigation and class action. He is a graduate of Amherst College (1965) and of the University of Michigan Law School (1968).