Virginia Lawyers Weekly

On June 18, the Virginia State Bar Council simultaneously created a Diversity Conference – and discriminated against it. Really.

Currently there are three VSB “Conferences” – Young Lawyers, Senior Lawyers, and Local Bars. Unlike these Conferences, the new Diversity Conference will not enjoy a seat on the Executive Board or funding by the VSB. So, while the Senior Lawyers Conference Chairman gets his or her dinner paid for by the VSB when attending meetings, the Diversity Conference Chairman will have to fund-raise or “self-fund” the rubber chicken. And, while the Young Lawyers Chairman is making policy on the Executive Board, the Diversity Chairman will… well, get to watch.

This incremental overture to diversity is reminiscent of the creation of a Virginia state holiday for Martin Luther King in Virginia. Recall that, originally, King got the holiday but had to share it with a couple of Confederates – “Lee-Jackson-King Day.” Virginia subsequently separated the holidays – and I imagine that the VSB will shortly treat the Diversity Conference equally as the other three Conferences.

Remarkably, the discrimination against the Diversity Conference was considered by the Bar Council before the vote. A well-respected Alexandria lawyer, John Zwerling, took to the podium to point out that this didn’t look right. This was a good point, and there was some murmuring among the Council members and nervous chuckles. But, in the end, nobody raised a motion to fund the Diversity Conference – even after Rodney Smolla, dean of the Washington and Lee University law school, took to the microphone with a well-reasoned legal opinion that doing so would be constitutional.

And so went my introduction to the ways of the VSB.

Having been recently elected to the VSB Council from Arlington/Falls Church, but not to be seated until July, I decided to sit in on a Council meeting to get the lay of the land. What I found was a group of very smart, dedicated and diligent lawyers who were taking valuable time from their busy practices to act as the administrative arm of the government in charge of regulating our profession. Much of the meeting was what one would expect – dull. But, there were nuggets of subtle humor visible to the outsider. Since I have only a few more days as such, here are my observations.

The VSB and the council themselves are unique creatures. All other professions are regulated by the executive branch of government, with significant input and control by the legislative branch. Lawyers, however, are regulated by a judicial branch agency in a quasi form of self-regulation. As Virginians we inherit the legacy of many great political philosophies – including those of Washington, Mason, Madison, Henry, Albo, and Griffith. (The last two Virginia statesmen are my partners, so I had to include them).

So, naturally, when it came to the unique way in which our profession was governed we looked to … pre-1776 England. Council members are elected by their peers, meet, deliberate, vote and have dinners. But, almost anything important is subject to approval by the justices of the Supreme Court of Virginia. From what I’ve been told, the Supreme Court takes resolutions passed by the VSB under advisement without a timetable and will ratify or reject them without comment for any reason or no reason.

This is actually a great relief for some council members. At least twice at the council meeting I observed, speakers mentioned that the Supreme Court had final say on this or that matter, so hand-wringing about a controversial issue or vote was simply unnecessary – the justices would clean up after us. This system is, indeed, not all bad. When the VSB’s executive director announced that the bar’s income exceeded it expenses, one member jumped up to demand that we raise VSB staff salaries.

(Being a government agency we can’t leave money unspent, can we?) The executive director coolly replied that the freeze was ordered by the Supreme Court because the court’s own staff salaries were frozen. It wouldn’t look good to have VSB employees living large while court employees were taking a financial hit. So, through this paternalistic system, we have the advantage of keeping our balance sheets clean while telling our angry employees to blame the Supreme Court. Brilliant.

But, let’s turn back to the meeting. The vote on the Diversity Conference was clearly the main event. The first speaker was Joe Condo, who I know as a well-respected domestic relations lawyer. He delivered an argument in favor of the Diversity Conference that was, from an advocacy standpoint, pure poetry. Whether you supported or opposed the proposal, it was a pleasure to hear him state his reasons for support and to preemptively rebut criticisms. For example, one criticism of the proposal apparently was the proposal’s inability to define “diversity.” Clearly recognizing that comparing “diversity” to “pornography” would be a bad strategy (you know it when you see it), Condo channeled his inner James Madison. Madison had argued at the Virginia Convention considering the ratification of the United States Constitution that the beauty of the separation of powers provisions was in the vagueness of the separation. Condo similarly argued that the genius of the Diversity Conference was the proposal’s lack of a definition of “diversity.” So, anyone who feels left out by the majority can self-identify themselves as “people of diversity.”

Smolla next gave an appellate argument-style legal opinion confirming the constitutionality of the proposal. Like Condo, he was extremely articulate, organized and persuasive. He was followed by another council member who also gave a well-reasoned pitch for the proposal.

Jon Huddleston, our new VSB President, then took the podium to call on an opponent Joseph Stuart, who had written against the Diversity Conference. (Insert the sound of crickets here.) After a few awkward moments, one of the council members spoke up and announced that the individual “had to take their family on vacation” and regretfully couldn’t attend the council meeting. So, Huddleston called for any opponents to take the podium. At first, no one stepped forward. But then a salt-and-pepper-haired council member stood up and walked to a microphone. A few others also spoke against the proposal.

The first speaker, like most of the opponents, was clearly moved by Condo’s statement that anybody could be a “person of diversity.” He told the council about how he was the first in his family to go to college, and one of the few lawyers in his small town, among other challenges. Another memorable opponent, a fashionable, articulate man with a Howie Mandel-style bald head and chin goatee, identified himself as the epitome of diversity. He announced that he was Jewish, his wife Chinese. They had two kids – a boy and a girl. The kids spoke Chinese, Hebrew, and “a little English.” They had two cats – one black, one white.

Another opponent stated that being from far Southwest Virginia, he was a person of diversity and opposed to the Diversity Conference. (Until he pointed it out, I hadn’t realized that Abingdon was over two hours west of Roanoke and almost six hours from Arlington. I surmised that Abingdon was an Indian word meaning “long drive.” I don’t know any Abingdonians, so maybe they are underrepresented – either that or they were still in their cars on their way to the meeting). Others on the council must have had similar thoughts because the debate was diverted for a moment to discuss whether people from Southwest Virginia were underrepresented and whether Roanoke counted as part of “Southwest Virginia.”

The main point by the opponents was that when you promote diversity you inherently pick some groups for favor and advantages and reverse-discriminate against others. One opponent astutely pointed out that while the Diversity Conference was planned as a self-funded entity which would not use VSB dues money, it would soon ask for VSB money. Tellingly, none of the Diversity Conference supporters disagreed.

The problem for the opponents was that it was hard to state opposition (or vote against the proposal) without the self-conscious feeling that others were thinking that you were a racist. One addressed this point directly saying that he didn’t want people to think he was a “racist or a redneck” and that his opposition was sincere and that he “really only wanted to be liked.” Zwerling stated that he wished he didn’t have to vote on this – but that he would hold his nose and vote “yes.”

More supporters spoke. A man from Danville spoke of how he, as an executive Committee member and person of diversity, tried to get other diverse lawyers active in the VSB, but that they didn’t feel welcome. Another lawyer spoke of taking his minority client to trial before an all-white jury and judge, with all-white attorneys. There was talk about the 1960s and Virginia’s massive resistance and segregation. None of this helped the opponents and their feelings of self-consciousness.

Throughout the debate, no one identified what the VSB was currently doing that was discouraging diversity or being unwelcoming to greater diversity. Nor did anyone state what exactly the Diversity Conference would actually do. But, as expected, when the vote came, it was overwhelmingly in favor of creating the Diversity Conference and giving its chairman a seat on the Bar Council. Then, in a King Solomon move, the council discriminated against the infant Diversity Conference by denying its chairman a seat on the Executive Board as is the practice with the other three conferences.

So, is all this a good thing? Who knows? As Zwerling said during the debates, it can’t hurt. But here is an interesting observation. The next day, at the Fun Run, awards were given based on the three winners in various age categories. The three winners of the Men’s 20-29 Year-Olds were… no one. Hundreds of people in their late 20s are newly minted every year. It would be tempting to call for creating a conference for them similar to the Diversity Conference, except we already did that – the Young Lawyers Conference. Despite no young lawyers present, and even without a Diversity Conference, there were several folks of diversity at the race – which I saw very clearly as they each were running past me. (After trailing him for most of the race I did beat, decisively, a nice lawyer from Williamsburg even though he was 22 years older than me). And, in a possible glimpse of the future, and without a Diversity Conference, a VSB-sponsored seminar on how to open and run a law firm attracted an audience in which white males were the minority in attendance. If this is any indicator, then with or without a Diversity Conference, there will be more diversity in law firms because fewer white males are learning how to start law firms.

There were two other controversial topics discussed at the Bar Council meeting. The first was a proposal to make the unauthorized practice of law a felony. Currently, it is a misdemeanor. (Wow, a bunch of lawyers deciding how harshly to punish non-lawyers who poach their clients – do you need to guess how this one turned out? Out of habit, some of the criminal defense lawyers on the Council did make a token opposition. But, similar to their usual fate in court, they lost).

The second topic was whether to allow a lawyer to sell a portion of his practice but continue practicing law in the unsold portion. Apparently, some lawyer in Virginia became disabled and could no longer litigate. But, he could still do transactional work. He wanted to sell his litigation practice but continue doing transactional work. As currently written, the legal ethics rules required him to cease all practice of law if he sold any or all of his practice. Shockingly, there was opposition to this. But the opposition was really over the nine-year-old rule permitting the sale of one’s law practice in the first place. Some feel that this is unseemly. However, since most lawyers dream of one day selling their law practice and retiring to Staunton, this proposal passed overwhelmingly.

It is issues like the latter which motivated me to join the Council. I would like the VSB, as a mandatory licensing agency, to be lean and mean. I’d like for it to protect the public and do little else. If something can be done by the voluntary bars, it should be. I don’t want the VSB “encouraging” attorney practice area specialization through last year’s adoption of the ABA’s policy concerning “board certification” of practice areas. I don’t want them telling me that I cannot sell my practice and retire to Staunton. I don’t want them telling me how to run and market my practice if I’m being honest and truthful. I don’t like them telling me that I can’t contract with my colleagues as other professionals do. I don’t want them raising my dues. I don’t want to eat chicken.

I was told that the Council meeting I observed was unusual due to the vote on Manuel Capsalis’ signature diversity initiative. But the incoming President, Jon Huddleston, said in his inauguration speech on Saturday that he was going to take on the Israel/Palestinian West Bank issue. He was kidding (wasn’t he?).

David Oblon practices law in Arlington.

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