Virginia Lawyers Weekly

VIRGINIA BEACH – The Virginia State Bar Council has approved the creation of a Diversity Conference but stopped short of giving it the full status enjoyed by the bar’s other three conferences.

Creation of the Diversity Conference, the key initiative of outgoing VSB President Manuel A. Capsalis of Arlington, and related issues dominated the agenda at the council’s meeting, held as part of the VSB’s Annual Meeting June 18-20.

Council members approved the new conference on a vote of 51-13-2, after more than two hours of debate in which opponents contended that the proposal failed to define diversity in a coherent way and was inappropriate for a state agency supported by mandatory bar dues.

Joseph A. Condo of McLean, a council member and former VSB president, chaired the task force that recommended the conference. Condo countered that diversity in the profession strengthens confidence of the public in the legal system and enhances respect for the rule of law.

“Without sustained, long-term commitment from an established entity, it won’t happen,” he said.

VSB leaders have long been concerned about the relatively low percentage of minority attorneys in the bar – the exact figure isn’t known because the VSB does not gather ethnic and gender information. Also of concern have been lower bar exam pass rates among minorities and an apparent higher incidence of professional discipline of minority lawyers.

A study of the disparities led to the conclusion that “if you waited until the bar exam or law school or even college, you were starting too late” to attract the best minority minds to the legal system, Condo said.

The Millennium Diversity Institute and the Oliver Hill/ Samuel Tucker Law Institute have been set up to foster “pipeline projects,” but more needs to be done, Condo said.

Originally, the diversity initiative included an effort to add promotion of diversity to the mission statement of the VSB. That proposal was withdrawn. Instead, the council voted, 50-14-1, to expand its own powers “to encourage and promote diversity in the profession and the judiciary.”

After voting in the diversity conference, the council appeared to trim the power of its new creation slightly.

The presidents of the VSB’s other three conferences – the Young Lawyers Conference, the Senior Lawyers Conference and the Conference of Local Bar Associations – all have a seat on both the council and the Executive Committee.

But the leader of the diversity conference won’t enjoy the same position. The council reps voted to give the new conference’s president a seat on the council, 42-21-3.

A companion proposal to have the president serve on the council’s executive committee failed 30-33-3.

The diversity conference will differ in another significant respect. It will finance its own operations rather than rely on bar dues as the other conferences do.

That provision appeared to be designed to ward off a lawsuit based on Keller v. State Bar of California, the 1990 U.S. Supreme Court opinion that held that a unified bar cannot use mandatory bar dues to take positions that a significant number of its members disagree with.

Washington and Lee University Law School Dean Rodney A. Smolla told council members that the proposal would withstand legal scrutiny even if bar dues were used to support the conference. The test is whether it is “within the general mandate of the bar to address issues that affect the practice of law,” he said.
He noted that the Supreme Court had acknowledged the importance of diversity in 2003 in approving a much stronger affirmative action program at the University of Michigan than the one contemplated in the VSB’s diversity initiative.

By that standard, creation of the diversity conference is “not only sound policy, it’s sound constitutional law,” he concluded.

Council members C. Eugene Compton of Lebanon and William H. Riddick of Smithfield disagreed, at least on policy grounds.

Riddick called the diversity proposal “an ideological venture” outside the VSB’s mission. The focus of the bar should be “about the best quality,” he said.

Compton said creation of the conference is saying to part of its membership, “Let us reach down and help you … , but if you’re a white male, we’re not going to help you.”

Jennifer L. McClellan, the outgoing president of the Young Lawyers Conference, responded that Compton’s remarks illustrated why the proposal does not include a definition of diversity. “When you define diversity,” she said, “you exclude somebody and we didn’t want to do that.”

Capsalis, who appointed the diversity task force and championed the creation of the conference, was pleased with the result and the quality of the discussion on the issue.

“This body was at its best regardless of the outcome,” he said after the vote. “It makes me very proud to be a Virginia lawyer.”

Creation of the conference “gives us a better chance to fulfill our mission,” he said. “I think there’s tremendous positive potential for this endeavor.”

The council’s actions are subject to approval by the Supreme Court of Virginia.

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