The Nashville Bar Association (NBA) has petitioned the Tennessee Supreme Court to modify its rules to require two hours of training on an annual basis to cover the topic of critical race theory.
Critical race theory is “the view that the law and legal institutions are inherently racist and that race itself, instead of being biologically grounded and natural, is a socially constructed concept that is used by white people to further their economic and political interests at the expense of people of color,” according to Britannica.
The rule change would apply to all attorneys and judges who are admitted to the practice of law in the State of Tennessee.
Under Rule 21 of the Rules of the Tennessee Supreme Court, attorneys admitted to practice law in the State of Tennessee are already required to obtain a minimum of 15 hours of continuing legal education (CLE) credits. At least three of those hours must pertain to approved ethics and professionalism material.
The NBA’s petition filed August 28 proposes that the Court require that CLE credits on the topics of diversity, inclusion, equity and elimination of bias be part of the current 15 hour annual requirement. While the NBA specifically says it is not advocating for an increase in annual CLE requirements to accommodate the critical race theory training, it does not suggest what portion of the 15 hour should be replaced to cover the two hours.
The NBA cites a resolution passed by the American Bar Association House of Delegates in 2016 that urged states to require CLE credits in diversity, inclusion and elimination of bias as substantiation for their request for Tennessee to join left-leaning jurisdictions like New York, California, Minnesota and Illinois in such training requirements.
“Rooting out systemic racism, gender bias, and all forms of discrimination within the judicial system requires active efforts by all of those involved, including the judiciary and attorneys,” according to NBA.
The need to address systemic racism in our society, the NBA states in the petition, is more urgent than ever “in the wake of the deaths of George Floyd, Ahmad Arbury [sic], Breonna Taylor and too many others to list herein.”
In addition to the incorrect spelling of Ahmaud Arbery, NBA’s reference to the three decedents is interesting, in that the circumstances surrounding their deaths are completely different in nature, involved no one in the legal profession, and, at the time, all of the cases were still open.
It wasn’t until about a month later on September 23 that Kentucky Attorney General Daniel Cameron held a press conference with the results of an exhaustive investigation and the grand jury’s decision that debunked much of the media mistruths surrounding the tragic death of Taylor.
NBA says that by adopting their proposed rule change, the Court will demonstrate their recognition that “lawyers cannot fulfill their duties without ongoing training, education, and active engagement in the areas of diversity, inclusion, equity, and elimination of bias.”
This, despite the oath that all lawyers must take as part of the Court’s Rule 6, Admission of Attorneys, that addresses the issue.
The oath reads, “I, ___________, do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Tennessee. In the practice of my profession, I will conduct myself with honesty, fairness, integrity, and civility to the best of my skill and abilities, so help me God.”
The U.S. Constitution, the basis for the education of all attorneys, in Section 1 of Amendment XIV guarantees all persons equal protection under the law.
Additionally, the Court’s Rule 8 pertains to Rules of Professional Conduct and includes, in addition to coverage of an extensive list of topics, a preamble of a lawyer’s responsibilities.
That preamble references several times concepts such as the promotion of justice and public good, ethical conduct and integrity, dedication to justice and the public good and a special responsibility for the quality of justice by lawyers who serve as officers of the legal system.
Additionally, the Rules of Professional Conduct dedicates an entire rule to public service. Rule 6.1 states that there is “a responsibility” and actually urges all attorneys to provide pro bono work of at least 50 hours of legal services per year to persons of limited means.
Violations of the Rules of Professional Conduct such as engaging in conduct that is prejudicial to the administration of justice can be subject to discipline, including loss of license to practice law.
The Court issued Order No. ADM2020-01159 to publish the petition for public comment and is currently soliciting written comments from judges, lawyers, interested organizations as well as the public on the proposed rule change.
The deadline for the submission of written comments is December 30.
Several organizations, including the Tennessee Trial Lawyers Association, Memphis Bar Association, Tennessee Employment Lawyers Association, Center for Excellence in Decision-Making and Disability Rights Tennessee have written letters in support of NBA’s petition to change the rules.
Letters from individual attorneys and citizens, however, all oppose the rule change.
Reasoning includes such varied perspectives as required CLE is of little to no benefit, no empirical evidence of a need other than being a “political stunt,” discrimination against female attorneys who are pregnant within law firms being more prevalent than the actual practicing of law and such training can be provided by the law firm or employer.
One commenter suggested that, with a disproportionate number of attorneys winding up as legislators, more appropriate training would be related to the Tennessee Constitution. In particular, emphasis should be on Article One, Sections 1 and 2 from the Declaration of Rights as well Article Eleven, Section 16, which the power to govern is explained.
One lawyer objects to the rule change, despite fearing retribution in form of being called a racist and otherwise demeaned for his position. He questions whether the petitioner for the rule change seeks to educate about a specific area of law called diversity or attempting indoctrination into a social movement.
As he points out, CLE is mandatory and may result in a loss of license to practice law. As such, he points out, “This is a heavy weapon for a social movement that has not been codified into law.”
West Tennessee-based attorney Richard Schoepke told The Tennessee Star that a lot of this type of training has its roots in corporate America, with human resources people selling their classes primarily as a plausible defense for future litigation.
Schoepke said the problem with such training is that even if implicit bias can be tested and confirmed, it does not correlate to any specific action and that training doesn’t change the way that professions such as teachers or law enforcement actually do their jobs.
As such, Schoepke told The Star, the end result is nothing more than virtue signaling.
Schoepke expressed concern, however, about the push of implicit bias and critical race theory relative to the practice of law.
Schoepke foresees that moving out of training to avoid corporate law suits into forcing the entire legal system to confess its subconscious racism will undercut the fabric of democracy.
“Then,” said Schoepke, “the next step is to do away with the entire legal system to put an end to systemic racism.”
Schoepke said the end result will be to “stop enforcing the laws or change the laws to accommodate the disadvantaged parties.”
The bigger picture, according to Schoepke, is that such changes will not simply undercut the legal system, criminal or civil courts, because our entire society is based on equal application and enforcement of the law.
Schoepke told The Star he has spoken with other lawyers and judges who are all against the NBA’s proposed rule change to include the training, but they are scared of the retribution they may incur by putting their name on any opposing comment.
It is Schoepke’s hope that the public will engage in this process, that would otherwise go unnoticed except through the various local bar associations that would allow the rule change to go through unopposed.
Anyone wanting to provide a written comment regarding NBA’s petition and the proposed rule change should email [email protected] or mail to James M. Hivner, Clerk, RE: Tenn. Sup. Ct. R. 21, section 3.01, 100 Supreme Court Building, 401 Seventh Avenue North, Nashville, TN 37219-1407 and reference Docket No. ADM2020-01159.