Florida Attorney-General Bans Outside Counsel with DEI & ESG Policies

The State of Florida's Attorney-General has increased the scope of his offensive against DEI and ESG initiatives.  Not only has the Florida AG announced an investigation into climate non-profits concerning environmental disclosures, but he has announced a comprehensive ban on outside counsel whose firms embrace DEI and ESG polices--or, as stated by AG Uthmeier, “standards [that] are transparently designed to intentionally discriminate on prohibited bases under the cover of anodyne phrasing.”  Indeed, as proclaimed by a policy memorandum from the Florida Attorney-General's office, “Law firms' discriminatory commitments embodied in DEI and ESG polices must no longer displace the interests of the State and supplant the bedrock principles that have since time immemorial governed the attorney-client relationship.”   

It is unclear what practical impact this policy memorandum will ultimately have.  Only a limited number of firms are retained by the Florida Attorney-General's office to serve as outside counsel, and it is not currently known how many of these law firms have expressed an adherence to DEI and/or ESG policies.  Among these firms, it is quite likely that ESG and DEI policies will be abandoned in order to maintain their profitable business relationship with the Florida AG--but it is not clear how significant those policies were.  Moreover, it seems unlikely that the prospect of additional business from the Florida Attorney-General's office will cause many law firms to proactively discontinue their DEI and ESG policies.

However, this policy memorandum is highly significant in terms of establishing a signal in the marketplace.  For a number of years, it was considered advisable for law firms to publicly express support for DEI and ESG initiatives, and to have DEI/ESG policies.  There is now a clear signal from a state attorney-general that not only are such policies undesirable, but that such policies could actively contribute to law firms being deprived of the opportunity for profitable work.  Indeed, the policy memorandum makes clear that it is designed, at least in part, to counteract the initiatives in the private sector to promote DEI & ESG policies ("[B]oth law firms and Corporate America should now be on notice that such discriminatory policies and commitments likely foreclose opportunities to secure government contracts . . . .").  Thus, this policy memorandum is a prime example of efforts to shift cultural norms surrounding DEI and ESG policies.