• July 29, 2016

Mike UngerML: You’ve just now finished your year stint as MSBA president. That is a privilege and an honor that very few Minnesota lawyers ever get to enjoy. I wonder if you could tell me your high points and low points of taking that position?

Mike Unger: I would say, in general, the high points are getting to interact with lots of members of the bar all across the state, different practices. Really interesting to meet lawyers of all stripes and perspectives and backgrounds.

I found that, although most lawyers don’t actually get very involved in the bar themselves, and we feel lucky if they just continue to diligently pay their dues year after year, that they do seem to have a real appreciation for what the bar association is. They all go out of their way, knowing nothing about me other than I was serving as president of the bar, to thank me for doing that because they believe that there’s a value to the profession in bar service. They have that baseline respect, I guess, and appreciation for the bar. I found that to be probably the most gratifying aspect of doing bar service.

ML: Biggest challenges or disappointments?

Mike Unger: You know, your time is very limited. In one year, given all of the processes and all of the constituencies we have to deal with in order to make things happen, you have very limited opportunity to have an impact that can last. I would say that’s certainly one of the things that would be a disappointment. That’s not to say that I wished I were serving beyond the year, because it’s a tremendous demand on your time. The one year limit is very nice from that perspective. In terms of really wanting to accomplish things and have an impact, the time limit that you deal with is definitely limiting on the impact you can have.

ML: There’s a sort of four-year pathway to get leadership position of the MSBA. Did you sign up for process with an agenda, an objective, a goal, or several?

Mike Unger: Not specifically, but I would say that, as I did my service in the MSBA officer ladder and got to see up close more and more of what the bar was doing or not doing, I formed ideas about things that we could or should be doing better. I would say the one thing that was of greatest prominence in that regard was my perception that the bar had been missing in action for quite a number of years with a lot of very significant changes going on with court rules and procedures, many of which were associated with the whole changeover to e-filing and what have you.

It seemed as though the courts were making these changes without any really meaningful organized effort by the bar to comment or to weigh in or to influence the direction of the changes. After the changes would be adopted, I would constantly hear complaints. Just in the ordinary course of practice, I would hear complaints from other lawyers about the new rule or the new process. I would wonder to myself, “How come you didn’t participate when you had a chance to comment?” The court usually would put these rules changes up for sixty-day comment periods, and anyone in theory who’s paying attention could submit comments.

It’s just not realistic to think that most members of the bar will take the time to look at proposed rules changes and think about how they may impact them in the future. It’s only as they actually are forced to encounter the changes and see what the practical effects are that they then develop and share opinions about the change.

I think that’s fair. It struck me, though, that if you’re going to have a bar association, that one of the things that a bar association then should be doing is having lawyers’ backs in that regard. There are lawyers out there who are willing to help, and able to, participate on behalf of the profession in commenting on rules changes. What we needed in the bar was a proactive way of assuring that that would happen, and that we’d find the lawyers who were willing to do this on a volunteer basis.

The state bar is notoriously shy of entering into anything that’s controversial within the profession or even with the courts. We have a process that builds in many checks and balances. If, at the end of all of that, the state bar can come up with a position on behalf of the profession that seems to have widespread approval, then that’s a pretty good guarantee that what they have to say about the rules does indeed fairly reflect a significant perspective of the profession.

We had to make a lot of changes, in order to revamp the way the bar works, to allow us to get back in the game, so to speak. We’ve been successful, and, Seth, you have helped with that, so that in this past year we have been providing comments and feedback to the court.  It’s not entirely clear yet, to what extent the court is persuaded by our input. I think that’s just a work in progress.  Over time I hope we’ll find that our comments and our input are more and more influential and valued.

ML: You mentioned that you would be challenged to have the role of president of the MSBA for more than one year because the amount of work it involved. How much, per week, did you find yourself dealing with MSBA obligations acting as its president?

Mike Unger: I’m a contingent fee lawyer, so I don’t really track my time except in rare cases where there might be an attorney fee claim. As a consequence, I don’t really have a very precise way of answering that question. I can only go on a general sense. I would say that over the course of the year, probably, it might average about half of my time, professionally.

There were times, though, in the year, particularly toward the end of the bar year, where it was way more demanding than that. For whatever reason, the demands placed on the president end up really ramping up a lot toward the end of the bar year, including culminating in the month of June, when we have all these conventions all around the state. I put about fifteen hundred miles on my car, running around from place to place, attending these conventions. The way the conventions were organized, it’s basically a full day commitment each time. You not only have the travel time, but then you have the full day of convention activity.

ML: Our state seems ideologically split down the middle to me. The split, as I understand it, is that the urban areas tend to be Democrat/liberal, and the more rural areas, or even the outer suburbs, tend to be more conservative/Republican. I wonder if your experience of the Minnesota Bar suggests any variation among the bar, between, we’ll call them Twin Cities lawyers, although I hear that RT Ryback does not like the term “Twin Cities,” so let’s say the Metro Area Bar, and we’ll throw in Duluth in there, perhaps Rochester, too, and the rest of Minnesota? Is there any difference in those constituencies, from your perspective?

Mike Unger: I can’t say that there is necessarily politically.  Although I would say that lawyers in general do tend to reflect their communities.

But most of the work of lawyers doesn’t really play into that kind of political profile.

What I observe more is a kind of sensitivity outside of the Hennepin County area. There’s a sensitivity among many lawyers in the bar, a presumption, if you will, that the Hennepin County legal profession has disproportionate influence on everything to do with the profession. Certainly, it’s true that if you look at the Hennepin County Bar Association, it accounts for about half the membership of the state bar. If you’re over in Ramsey County, you’re a metro lawyer, too. You have a great tradition and a great bar association, but many of them also seem to be worried that they are going to be overshadowed by the big brother across the river.

The demographics of our bar make it only natural that people in less populated parts of the state will have some sensitivity and belief that they’re receiving less attention than should.  In my experience, this is usually a misperception and a concern that is greater than the reality.  MSBA seems very sensitive to these issues for the most part.

ML: Are there any items on out-state Minnesota lawyers’ agendas that any feel are being overlooked or under-appreciated by the state bar association?

Mike Unger: Not specifically. Concerns about “unauthorized practice of law” might come the closest to making a list of underappreciated concerns.  I would say that, for example, one of the things that the bar is studying right now is the idea that there should be alternative forms of legal practitioner.  This notion comes in part from an action taken in Washington state and is being debated elsewhere now.  Washington state famously created a new category of regulated legal service providers called the Limited License Legal Technician, “LLLT. “ It’s a new program. These individuals are sort of super paralegals, who have the ability to actually give direct legal advice in very circumscribed, narrow areas.

That has caused a great deal of concern in the profession, and it feels like, from my interactions, that that’s even more concerning to non-metro lawyers than it is perhaps within the metro area.  My perception may be wrong and it could just be a function of the fact that the metro-based bar is so huge, and you have relatively little interaction, actually, on a percentage basis with metro lawyers when we go to meetings to discuss these issues. If I go to Duluth, for example, and I go to a bar meeting in Duluth, I’m much more likely to see many of the most prominent members of that bar. That’s not necessarily the case going to an event here in the Twin Cities.

I do have the impression, though, that in greater Minnesota, there’s greater anxiety about the idea that there could be some sort of alternative legal service provider category created. One view expressed is that, being in a small community, everyone knows everyone and so small town lawyers are meeting the needs for legal services. They are more likely to question whether there is a compelling justification to create a new category of legal service provider that could theoretically be less expensive for the public. Many worry that that new class of service provider may just end up taking work from the lawyers.  They’re already struggling to maintain work and to fight against the advertisers and the big national law firms and all the other mega competition that’s out there.

ML: I’m not familiar with the LLLT Washington program, and I’m intrigued by it. Do these LLLTs function completely independent of lawyers and law firms?

Mike Unger: Well, there are different models. In Washington state’s model, they have very limited things that they can do on their own initiative, but within that scope of service they’re not subject to immediate lawyer supervision.  Under the Washington state model, the courts have created specific educational requirements, testing requirements, registration, discipline, if you will. It’s kind of like a mini version of lawyer regulation for this category. It was a category developed really at the initiative of the courts, and over the objection of the bar of Washington state.  The impetus for this is the perception that the current model that we have just is not meeting the needs for legal services.  That there are just too many folks who are in the court system on a pro se basis, who feel they can’t afford a lawyer, and that this is creating a huge headache for the courts and obviously not fulfilling our objective that everyone should be able to have access to our justice system.

In theory, it seems to me, that it may be true that there’s a market out there consisting of legal consumers who would really never consider hiring a lawyer, but who might still hire some alternative provider. If that’s indeed the case, lawyers may not miss anything as a result of the alternative service provider because those consumers were never going to hire a lawyer in any event. These consumers would just represent themselves or proceed without legal guidance, if need be. The theory behind this alternative legal provider concept is that it can be a bit of a life preserver for these folks, to at least assure a little professional guidance and help as they contend with their legal needs. The hope is that this alternative is better than just having them out there pro se, flailing about, and making life difficult for everyone in the legal system.

That’s the theory of it. How you can set up such a system, though, to assure that it really doesn’t do damage to lawyers’ business models, I think, is critical. The backbone of the legal system is the legal profession, and the ethical obligation to provide pro bono service is highly dependent on lawyers’ ability to succeed with their careers.  Our system of free enterprise for legal services that nevertheless says that professional duties include pro bono service, is highly dependent on having a business model that allows a lawyer to succeed well enough, that they can find time to do pro bono work as well. If you’re not paying the bills, and you’re operating at such a low level of economic sufficiency, that you feel you really don’t have room in your professional life to be giving away your services for free.  Alternative legal providers, if not properly devised, threatens to undermine the pro bono services that so many lawyers now provide.

It seems to me that we have to, if we’re going to look at alternative models, we must assure such ideas do not end up being counterproductive, in terms of providing services to people who wouldn’t be able to afford it.

ML:You have a child, as I recall, who is early on in her practice, which is to say, is she clerking now?

Mike Unger: Actually, I have two daughters, both of whom are lawyers and were judicial clerks.

ML: So they’re practicing now?

Mike Unger: They are. One is here locally, at the Fredrikson firm, and the other is at a firm in Philadelphia called Dechert. They both seem to like their experience so far. They have a different experience than I have had, being a solo guy now and originally starting as a small-firm guy. They are working in the “big law” category right out of the chute. I do worry about that for them, that they may get burned out, because I know how the pressures on new associates at large law firms can be. So far, they seem to be enjoying their work. They’re getting a good deal of satisfaction from what they’ve been doing, and they like the people they’re working with.

ML: Their mom is a lawyer, too?

Mike Unger: Yes, my wife is a lawyer. Yes. It’s an all-lawyer family, I’m afraid.

ML: Your daughters went into the law with your encouragement, with your equanimity, or against your recommendation?

Mike Unger: I never pushed the idea that they should become lawyers. I never really even recommended it to them. It was their choice and their idea. However, I didn’t counsel against it, either.  I have a lot of respect for the profession, and for opportunities that one can have for a good life as a lawyer. I believe they came to pick law after watching the lifestyle that my wife and I led in raising them as kids over the years.

We had a lot of flexibility in our schedules, which allowed us to be active participants in their childhoods. They were smart enough to make comparisons between their experience with their parents, and their parental involvement, and that of other peers, at school or elsewhere, who seemed to have parents missing in action a lot more. I think they took from that that the legal profession must be pretty good, because look at how we were able to show up for things and be there when they felt that it counted.

I would say, by and large, that’s a fair description of one of the real benefits of being a lawyer, in most circumstances. Obviously, there are certain practices, and certain firm environments, in which you really wouldn’t have that kind of discretion. My friends who are now on the bench seem to have very, very little control over their schedules anymore.  But independence is certainly one of the attainable benefits of being a lawyer. You can opt to have that control over your schedule.

Now, it’s not as blissful as they probably thought it was.  Because while we were at that soccer game or that school activity, during the school day, it just meant that we would stay home, or stay at work, later in the evening, or go in on the weekend in order to make up the time. The flexibility of shifting time and place of work, seemed to make the legal profession an attractive option for both daughters.

ML: I know you’ve had a year of being on a soapbox, so to speak, of being able to communicate your ideas to the Minnesota Bench and Bar. Is there anything, though, that you didn’t say as MSBA president that you would like to say now?

Mike Unger: That’s interesting. There are all kinds of things you don’t say, that you might say, but when you’re president of the bar, you just figure it’s probably not your role to do that. I have opinions about things that I didn’t express, because I figure that I have a responsibility to be faithful to the profession at large when serving in a representative role. I don’t see serving as bar president as a soapbox for expressing my personal views on this or that. You do a lot of self-editing through the year.

As far as opportunities to say them now, I’m sure that I will have opportunities to express my views over time and some of those things will emerge over time.

ML: But as we sit here right now, you don’t have a cause that you are spearheading or a sort of list of things you want to jump on and change?

Mike Unger: Not really. I continue to have active interest in the idea that the profession should be more vocal in issues of court policy and administration. There’s been kind of a philosophical shift in how the courts are run over the years of my career. When I was in law school, learning civil procedure, it was drilled into us that the federal rules of civil procedure back then, were largely designed for the lawyers to run the litigation. The court was only going to be there in the unlikely, and hopefully unwanted, event that the lawyers couldn’t work things out.

There was something kind of cool about that, I thought. It put the lawyers in a very important position in terms of running the gears of the justice system.

But what has happened since then is a slow, but inexorable, drift over toward solving challenges through more rule making, to limit the discretion of the lawyers, and to put the greater weight on deadlines and requirements by the court in the litigation process. That has taken a toll on the lives of lawyers who do litigation work, I think. It makes for a more stressful kind of practice than it used to be, when you had a little more control over things, and you could work things out with your colleague on the other side of the case. Now —  not so much. Now, there’s a whole other factor to be dealt with.  That has made the lives of lawyers who do litigation harder.

That continues to be a concern of mine. I think that many of the rules changes that have come probably were necessitated, in many cases, by bad behavior by lawyers. Courts probably often felt as though they had to resort to more rules to try to control some of the problems perceived as emerging. I certainly get that and think that that’s understandable. By the same token, I feel like we have changed the nature of litigation over the last three decades. The loss of the jury trial, decreased ability of the lawyers to control and manage the process of litigation, more traps and rules to argue about, have all made it more difficult to be a litigator, I think.

I would like to think that somehow, slowly, we can maybe push the pendulum back in the other direction.  Just slightly. Not all the way. For sure, there are reasons for these changes that we’ll never be able to completely undo. I still think there’s room for some re-balancing, and for some moderation in how litigation works. If the pendulum does swing back, then the bar association has a heavy responsibility to assure that lawyers behave themselves, and that we are worthy of reclaiming some of the level of control of litigation that we used to have. That’s a big challenge.

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