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    As I See It
    A Profession on Edge

    Rapid changes in the legal profession are affecting every practicing lawyer (and would-be lawyer) in the United States. The author offers a range of information about these developments, which, taken as a whole, help explain how quickly the legal profession is evolving and what legal professionals collectively might think about as they move into the future.

    Wood R. Foster

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    By way of brief introduction, my 45-year legal career was spent entirely in the Twin Cities, but Wisconsin has been a home away from home for a large part of my life. My law practice began in 1968; it eventually involved cases in nearly half the states; I co-counseled with excellent Wisconsin lawyers on several cases.

    At home, I became active in my district and state bar associations, which in turn led to a long-term commitment to the profession itself. It was my great privilege to serve as president of the Minnesota State Bar Association right at the turn of the century; as it happens, the turn of the century coincided almost exactly with the onset of the changes I describe here.

    A Shrinking Profession

    During the last three decades of the 20th century, the nation’s lawyer population grew at a relatively steady 4 percent every year.1 Since 2000, the steady growth that tripled the U.S. lawyer population between 1970 and 2000 is now approaching a standstill. In many states, the trend is steadily negative.

    Wood R. Foster Jr.com WoodFoster siegelbrill Wood R. Foster Jr., Michigan 1968, practiced law in Minneapolis from 1968 until 2014, most of it as a litigator with Siegel Brill. He was president of the Hennepin County (1992-93) and Minnesota State bar associations (MSBA, 1999-2000). In 2017, he received the MSBA’s Lifetime Achievement Award. He also holds a Wisconsin law license.

    In 1999, law firms formed and grew as they always had. Large firms expanded in tandem with their growing (and mostly local) business clients. Small firms and solos grappled with the same legal issues faced by generations of their predecessors. The word “BigLaw” was unknown. Technology had barely started its transformational march; “word processing” (an antiquated term now) and primitive electronic legal research were slowly nudging their way into general use. “Smartphones” didn’t exist.

    As 2000 began, there were almost exactly 1 million lawyers in the United States. There were 190 law schools. Hourly rates and starting salaries were steadily rising. State bar associations were dynamic and growing. The outlook for lawyers was one of continued growth, prosperity, and relevance. Today, less than two decades later, a plausible argument can be made that the practice of law in 2000 bore much more similarity to the way we practiced in 1968 than to the way we practice today!

    In both Minnesota and Wisconsin – and everywhere else – things are changing with remarkable speed:

    • In January 2019 nearly half of all states, including Wisconsin, reported a smaller lawyer population than they did one year earlier. Nine more reported growth of less than one-half of one percent.

    • The nation’s entire lawyer population grew during 2018 by less than 10,000 lawyers – that’s less than one-third the number of new lawyers that graduated in 2017 from the nation’s roughly 200 law schools! But last year’s tiny growth was larger than the growth during 2017.

    • The job market for lawyers is dramatically depressed. A “class” of tens of thousands of (mostly) heavily indebted lawyers who will almost certainly never practice law has been created. Recently, a surprising number of law school graduates have been unable to pass a bar examination within two years after graduation, though (for obvious reasons) this is a much smaller issue in Wisconsin than in other states.

    • The gap between large-firm and small-firm or solo lawyers is growing fast. Wisconsin has thousands of sole practitioners, but it is also home to one of the world’s largest law firms (by revenue). The effects and significance of this gap are magnified by the sudden and stunning advent of BigLaw.

    Reasonable assumptions made about the future of the profession in 2000 have been seriously challenged – even upended – during the first 18 years of this century.

    Lawyers and Jobs: Wisconsin and the Nation

    When 2009 began, there were about 1.18 million lawyers in the nation. When 2019 began, there were 1.35 million. That is an average annual increase of roughly 17,200 lawyers per year over a decade. This must be viewed in the context that ABA-accredited law schools in the United States graduate some 34,000 lawyers each year.

    Growth is slowing appreciably. Total U.S. lawyer population growth during the last three years is only 39,000 – slightly more than the nation’s law schools currently graduate every single year.

    Twenty-five states, including Wisconsin, have averaged lawyer population growth of 1 percent or less per year over the last 10 years. This group includes large states like Pennsylvania, Illinois, Massachusetts, and New Jersey, along with many smaller states. Overall, Wisconsin’s lawyer population has grown by fewer than 500 lawyers since 2010; three states have fewer lawyers in 2019 than they did 10 years ago.

    In a handful of years, BigLaw has permanently changed the boundaries of the legal profession.

    Wisconsin, with 15,512 in-state lawyers as 2019 began, currently ranks 24th (roughly the median) nationally in lawyer population, though it is home to just over 1 percent of the nation’s lawyers. To be sure, 1 percent sounds awfully small for a state that represents the national median, but only until you consider that more than 50 percent of all U.S. lawyers (almost 650,000 of them) practice in New York, California, Texas, Illinois, Florida, and Washington, D.C.

    New York Times columnist David Brooks, in a Nov. 30, 2018, column on the “gig” economy (in which work is “temporary and insecure”), noted that well-educated young people who have gone through their full education are finding that “[n]ormal professions for liberal arts grads, like the law, are drying up.”

    A recent ABA study concluded that as of April 2018 (two years after graduation), only 62 percent of all 2016 U.S. law school graduates were in full-time, long-term employment requiring a law degree. There were only five law schools in the entire nation for which 90 percent or more of the schools’ 2016 graduates had found long-term, full-time, law degree-required jobs two years after graduation. For an astounding number of schools nationally, these employment figures are below 40 percent.

    Law Schools Today: Caveat Emptor

    Something very big has changed, and we’re all (mostly) ignoring it. To be sure, the general public is certainly not one bit alarmed by the prospect of fewer lawyers. But there are about 10 more ABA-approved law schools in the United States today than there were in 1999, and between one-third and one-half of all new lawyers seeking jobs today are finding literally no meaningful opportunities to practice law – even if they can pass a bar exam, which an ever-growing number cannot.

    It’s not a stretch to suggest that there ought to be a reasonable relationship between lawyer population and law school output, but that common-sense proposition is being ignored in virtually every state. This is obviously a smaller problem in Wisconsin, with only two law schools, than it is in many states. But even the approximately 344 annual graduates of the Marquette and U.W. law schools are challenged in a state in which total lawyer population has only grown by 50 lawyers since 2012.

    And while we can all agree that both the Marquette and U.W. law schools are upper tier, it is nonetheless a fact that bottom-tier law schools are a serious and ongoing problem in our profession.

    The law school “industry,” both public and private, is neither self-regulating nor state regulated. Many are for-profit schools. At least 91 of the nation’s law schools currently accept more than 50 percent of their applicants. A few accept 75 percent. Law School Transparency reports that between 75 and 85 percent of law students borrow for tuition, and that average 2017 debt upon graduation from private law schools was $130,000, and for public law schools, $93,000.

    Solos currently bear far more than their share of the brunt of competition from emerging – and growing – online providers of legal services such as LegalZoom and Rocket Lawyer and other websites that purport to offer free or cut-rate legal advice.

    A few years ago, law school watchdogs voiced alarm about the fact that several of the worst law schools in the country were accepting 25 percent (or more) of their first-year class despite LSAT scores below 147. Why is this important? Because respectable studies establish a strong correlation between applicants with LSAT scores of 147 or less and later inability to pass a bar examination. Ever.2 But the academic cries of alarm fell on deaf ears: today, nearly one-quarter of U.S. law schools (none in Wisconsin) admit 25 percent or more of applicants with LSAT scores below 147.

    The very fact that graduates of bottom-tier law schools can’t find jobs makes it easy to suppose that bottom-tier schools are facing existential threats. But with rare exceptions, they aren’t. With a few exceptions, the worst-performing law schools are not closing their doors. Tuitions are rising, not dropping. The virtually unlimited availability of federal loans is not tied in any way to the quality of the institution or the likelihood that students attending these schools will achieve success. Underperforming schools have no incentive to improve.

    Our profession itself pays a high price for neglecting this issue, because law schools no longer attract the cream of the undergraduate crop. By 2016, law school applications from 11 of the nation’s most prestigious undergraduate colleges and universities had dropped by more than 40 percent since 2008.3 To me, at least, this suggests that a (presumably) gifted segment of potential lawyers is choosing other postgraduate paths.

    Hello, BigLaw!

    Wisconsin is in the middle of the pack when it comes to lawyer population, but it boxes well above its weight in an arena with a name most of us had never heard of 10 years ago – BigLaw. Milwaukee is home to Foley & Lardner, recently ranked by Wikipedia as the 67th largest firm in the world (based on revenue).4 Foley not only has offices in more than 20 U.S. cities but also in Brussels, Tokyo, and Mexico City. Four other Wisconsin-based firms boast more than 100 lawyers in Wisconsin offices.

    In a handful of years, BigLaw has permanently changed the boundaries of the legal profession. The term itself has no actual definition. One of the earliest (and best) “definitions” I found was from 2005: “BigLaw: a collection of huge law firms in major cities where thousands of ivy leaguers and honor students make six-figure salaries straight out of law school. They usually quit after a couple of years of virtual slavery, but if they stay in the game, they end up running the country.”5

    The largest firm in the world by headcount, known simply as Dentons (the product of a 2013 merger of British, Canadian, and French firms), currently numbers roughly 10,000 lawyers in 175 offices in more than 75 countries. There are 21 states in the U.S. with fewer lawyers than Dentons.

    A few additional numbers quickly reveal what BigLaw is all about (any more than these would just depress you):

    • The combined annual 2015 revenues of the world’s 200 largest firms exceeded $100 billion.

    • Of the largest 200, 144 are U.S. firms. Others: United Kingdom (31), Asia (9), Europe (not including the United Kingdom) (9), and Canada (7). These 200 firms collectively have offices in 573 cities in 94 countries.

    • Chicago’s Kirkland & Ellis currently leads all firms in profits per lawyer ($1.585 million per lawyer).

    • The average top-200 firm employs 830 lawyers (314 are partners) and garners annual revenues of $1.77 million per partner.

    • The largest number of U.S. BigLaw firms are in New York (51), California (38), Pennsylvania (23), Illinois (22), and Washington, D.C. (21).

    BigLaw raises questions that have never been mainstream issues for the U.S. legal profession. In the age of BigLaw, we are no longer talking about traditional practice as we learned it in law school. We’re talking about unexplored issues raised by American lawyers directly engaging – and partnering – with lawyers engaged in different (sometimes very different) legal systems, different levels and quality of legal education, different ethical and lawyer oversight systems, and different financial restrictions.

    In theory, Wisconsin lawyers are directly answerable to the Wisconsin Supreme Court on matters of ethics. But what exactly does it mean to be a “Wisconsin lawyer” if your office and day-to-day practice are in California or in Tokyo? Does the Wisconsin Supreme Court have jurisdiction to determine whether a foreign office of a Milwaukee firm can offer partnership to accountants, which is a common practice in many countries? Do Wisconsin ethics rules apply to Foley lawyers practicing in Mexico City?

    Legal arrangements and agreements between U.S. BigLaw firms and their foreign partners have always been largely opaque. Most are probably structured as Swiss “Vereins,” which allow separate profit pools and related tax, accounting, and compensation systems, but allow strategy, branding, IT, and other core functions to be shared. But this is not public information.

    Keep your eye on BigLaw. It’s getting bigger.

    Technology and the Sole Practitioner

    Lawyers practicing alone – or nearly alone – made up almost one-half the nation’s lawyer population not very long ago, according to 20th-century ABA demographics. Today, almost all state bar surveys suggest a substantially lower percentage. This down-to-earth category, I suggest, represents the “real” public face of our profession.

    About 31 percent of Wisconsin lawyers practice solo, according to the State Bar of Wisconsin’s Economics of Law Practice in Wisconsin 2017 Survey Report; they outnumber Wisconsin BigLaw lawyers by about four to one. They outnumber all Wisconsin lawyers in government, public service, and academia combined. In a very real sense, small and solo practices are still the meat and potatoes of our profession.

    We all hear and talk about the advance of technology and its effect on the legal profession. I believe it is fair to suggest that solos currently bear far more than their share of the brunt of competition from emerging – and growing – online providers of legal services such as LegalZoom and Rocket Lawyer and other websites that purport to offer free or cut-rate legal advice.6

    Along with small-firm lawyers, today’s solos find themselves facing an onslaught of 1) low-cost, automated solutions to various basic legal needs; 2) ever-rising client expectations; and 3) a client base that is itself struggling with stagnating real incomes. Solos are trying to counter these pressures with emerging strategies such as unbundled legal services, alternative billing practices, and limited-scope representation. Each such development reflects small-practice lawyers’ attempts to address ever-mounting pressures of technology and a clientele that is no longer able (or at least is less willing) to pay traditional hourly rates.

    Without a doubt, the gap between solo practice and BigLaw will continue to grow, but I have little doubt that few in solo or small practices would gladly trade places with their BigLaw contemporaries. We can probably all agree that the ways each group experiences the overall sense of being part of a common profession are less and less rooted in common experience.

    Food for Thought

    Everything outlined above suggests that our profession is in a rapidly developing transitional stage.

    Beyond any doubt, traditional solo practices have less and less in common with rapidly emerging BigLaw practices. At a minimum, it seems prudent for all state and local bar associations to reevaluate their goals and purposes. Illinois has already resorted to a dual bar status, one aimed largely at large Chicago practices, the other clearly marketing itself to solo and (very) small firm practices.

    At the same time, the practice of law is dividing and subdividing into a myriad of specialty practices that make it increasingly difficult for us to nurture the unique commonalities that allow us to call ourselves “professionals.”

    Every bar association should carefully evaluate its role in bridging the ever-increasing differences in the way law is taught and practiced and study the implications of what appears to be an ongoing period of lawyer contraction.

    A lot to think about; no easy answers!

    Endnotes

    1 Lawyer counts and law school demographics and rankings are based on the ABA’s national population surveys, the ABA’s law school 609 information and statistical reports, Law School Transparency’s online statistics, and U.S. News & World Reports law school rankings.

    2 David Frakt, “Seeking Clarity – Some Dangerous Questions…Faculty Lounge; see also “Impact of the Increase in the Passing Score on the New York Bar Examination,” Report for Bd. of Law Examiners, NCBE.

    3 Keith Lee, “Smart Kids Stay Away From Law School, Girls Take Over,” Above the Law.

    4 BigLaw statistics are not current and change constantly due to delayed release of information on size, revenue, and the like. I have relied on Wikipedia (https://en.wikipedia.org/wiki/List_of_largest_law_firms_by_revenue; https://en.wikipedia.org/wiki/List_of_largest_United_States-based_law_firms), and ILRG (https://www.ilrg.com/nlj250), as well as individual firm websites.

    5 Urban Dictionary, www.urbandictionary.com/define.php?term=biglaw&defid=1426137.

    6 Benjamin Barton, Glass Half Full: The Decline and Rebirth of the Legal Profession 5-7 (Oxford University Press, 2015).




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