Several Florida attorneys are urging the state Supreme Court to rethink its new rule banning the Florida Bar from using quotas to ensure diversity among those who teach continuing legal education programs.
Amid the hubbub about the rule handed down in April, the American Bar Association this month requested a chance to discuss the high court’s order and some of the fallout from it.
“The amendment is being applied by the Florida Bar to deny accreditation to all American Bar Association Continuing Legal Education (CLE) programs, and to deny CLE credits to any Florida lawyer who participates in an ABA CLE program,” the ABA wrote this week in a comment to the Supreme Court.
Attorney Michael Gelfand
The court concluded that only those types of quotas prohibited by the Constitution would disqualify such programs from Florida Bar certification, the ABA said.
“The ABA’s CLE Diversity & Inclusion Policy is not – and never has been – an impermissible quota or set-aside,” the ABA said in its request for an oral argument. “It is a policy of inclusion, not exclusion.”
The amendment to the rule came in response to the Florida Bar’s Business Law Section adopting a policy aimed at regulating the makeup of faculty who teach CLE sessions sponsored by the Business Law Section. The policy sought to increase diversity of instructors based on “ethnicity, gender, sexual orientation, gender identity, disability and multiculturalism.”
“Quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination,” the high court said in its April 15 order amending the policy.
West Palm Beach Attorney Michael Gelfand, past chairman of the bar’s Professional Ethics Committee, noted in a comment to the Supreme Court that the issue is now moot because the Business Law Section has rescinded the CLE policy. Speaking for himself and not for any organization he has been a member of, Gelfand still urged the court to reconsider its order, which was not prompted by any formal petition or complaint..
“The process leading to the decision undermines the legitimacy of the decision, potentially weakening the court’s hard-fought respect,” he said in comments to the court.
Gelfand sees several negative consequences arising from the court’s order.
“The proposed rule has a number of different tracks of impact,” he told the Florida Record. “The first is limiting access to continuing legal education programs. And the second is a potential chilling impact on diversity efforts, particularly as that is an important aspect of most organizations at this time.”
A potential third impact is the method of the court's action -- sua sponte (an action taken without prompting from a third party), according to Gelfand.
“The court has removed the cauldron of debate through which traditionally good law is created," he said.