Courts

What Century Is This?

Never thought we'd read about a state supreme court that clearly prefers the past to the present. But here we are.

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For so many years, I looked at photos in CLE program brochures and wondered why all the speakers were white males and, at that point in time, older than I was. (No more.) No lawyers of color, no women. I asked the general counsel to whom I reported, who had bought tickets to a particular CLE program featuring neither women nor lawyers of color, to ask one of the organizers why that was so. The response was lame. (This was in the late 1990s or early oughts). The organizers claimed they couldn’t find any knowledgeable women or lawyers of color. Really? What a crock. What an insulting answer to those who had been practicing for years and who were equally qualified, if not more so, to participate on the various panels. In fact, the sponsors had only to look within their own Biglaw firms for smart, knowledgeable respected lawyers of color and women. But the old boy network was alive and well.

It’s only been in the past decade or so that things have started to change in terms of diversity and inclusion on CLE panels (ironic, isn’t it, when the profession is supposed to champion those ideas?) However, I never thought I would read about a state supreme court that clearly prefers the past to the present. But here we are. And the Business Law Section of the Florida Bar which, while trying to do something laudable, (i.e., diversifying CLE faculty composition) got whacked upside the head.

The Florida Supreme Court has, sua sponte, told the Florida Bar that, pursuant to its decision in: In re: Amendment to Rule Regulating The Florida Bar 6-10, Case No. SC21-284, it is prohibited from approving continuing legal education programs that use “quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.” In other words, a diverse CLE faculty is a bad idea. Florida Bar Rule 6-10.3(d).

Language in the court’s order talks about “certain means are out of bounds.” The court says that “Quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination.”

And, by the way, this ruling may well impact not just programs that the Florida Bar puts on, but any program by any provider (ABA, PLI, and a host of others) that has a diverse speaker panel and for which Florida CLE credit is sought. What century are we in? The dissent comments that a simple letter to the Business Law Section of the Florida Bar would have sufficed, stating that the diversity requirement may well be in violation of United States Supreme Court precedent and that there was no need for a rule amendment on this point.

What is especially interesting is the language added to the Florida Rule on MCLE course approval. “The board of legal specialization and education may not approve any course submitted by a sponsor, including a section of The Florida Bar, that uses quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.” Exactly what is a “quota” in this context? Just because a CLE provider picks lawyers of color or women to panels does that automatically scream “quota?” What if those selected are the best qualified to speak on the topics to be discussed? Who makes those panel selection decisions? Should that change?

What does the term “course participants” mean? Should that be taken to mean that audiences can no longer be diverse? Isn’t the word “participants” redundant if the intent of the rule is to be applied only to faculty? What other participants are there who are not faculty except for those attending the program? Could the term “participants” mean vendors, co-sponsors? What if a minority bar, also a CLE provider, has a CLE program and draws faculty from its membership? What if a minority bar is a co-sponsor of a program? Would that CLE provider have to decline the co-sponsor participation, thus pissing off members and losing revenue because of the rule change?

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Why this amendment? Is it nothing more than an attempt to roll back diversity and inclusion efforts to bolster the fragile egos of white male lawyers? Do any white male lawyers have fragile egos? I haven’t noticed that in all these years, in fact, just the opposite in my experience.

So, what now? The Florida Supreme Court held that the amended rule would be effective immediately — as of the date of its decision, April 15, 2021 — however, it would allow comments to its decision to be received until June 29, 2021. If anyone wants to comment on this absurd rule change, time’s a-wasting.

Aside from this ruling, who thinks that diversity in CLE is a bad idea? Of course, no one is going to say anything publicly that it’s not a good idea, but I would imagine that there are those among us who think that diversity in CLE is a bad idea. Those same lawyers probably also think that diversity, equity, and inclusion in our ranks is also a bad idea, but no one has the guts to say so publicly. Yes, appearing on a CLE panel is often a marketing opportunity. What’s wrong with that? Isn’t it well beyond time for lawyers of color and women to have such opportunities to develop business?

Please tell me what century the Florida Supreme Court is in, because it sure doesn’t look like mine or does it?

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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