July 16, 2021 - The Business Law Section of the Florida Bar adopted a policy regulating the composition of the faculty at section-sponsored continuing legal education (CLE) programs to ensure diversity. The new CLE Diversity Policy mirrors, in large part, an American Bar Association (ABA) policy that took effect in March 2017. In response to the Policy, the Supreme Court sua sponte amended Rule 6-10.3 of The Rules Regulating The Florida Bar to prohibit such policies.
Legislating on matters of diversity that particularly and directly impact Black lawyers without lawyers and the entire organized bar first discussing, evaluating, and proposing the means to incorporate diversity into the profession is contrary to public policy and the legislative prescription for our judicial system. Black lawyers, who historically have been excluded from Florida law schools, the judiciary, and Bar participation solely because of the color of their skin, should have a real and meaningful opportunity to do more than comment on a sua sponte rule change that is already the law in Florida without any prior notice or an opportunity to be heard.
On July 16, 2021, I filed with the Florida Supreme Court comments in opposition to the amendment, on behalf of the Virgil Hawkins Florida Chapter National Bar Association, Inc. VHFCNBA’s comment presents two arguments. First, the Supreme Court’s authority under Rule 1-12.1 of the Rules Regulating The Florida Bar to amend Rule 6-10.3(d) requires the initiation of a petition invoking the Court’s Article V, Section 15 subject matter jurisdiction over attorney discipline. Absent such a petition, the Court has no power to amend the Bar Rules on its own motion. Second, given the complex legal, professional, and ethical issues involved in the determination of whether a particular classification runs afoul of the federal Equal Protection Clause, VHFCNBA’s comment contends the Supreme Court should save the question of the legality of the Business Law Section’s CLE policy for a bona fide case or controversy.
VHFCNBA’s comment presents a brief history of Black lawyers before and since the founding of The Florida Bar. The Comment cites Florida’s First Black Lawyers: 1869-1979 (2009), so thank you to all members who worked on drafting and publishing the book. In addition, Senator Arthenia L. Joyner, Harley Herman, and Delano Stewart assisted in compiling the background information on the history of Florida’s black lawyers during the early years of the creation of a mandatory bar in Florida. Finally, thank you to Judge Emerson R. Thompson Jr., Cynthia Everitt, Noel Jones, and Benedict P. Kuehne for collaborating with me on drafting the comment.
If you have time, look at the comment.