Mark Dubois
Mark Dubois ()

My colleague Sergei Lemberg and I recently wrote about the challenging patchwork quilt that state lawyer advertising regulations present to members of the bar who advertise nationally and those of us who advise them. Near the end of the article we suggested that maybe advertising regulation should be left to consumer protection folks, where the focus would be on content, truthfulness and the lack of unfair trade practices, instead of compliance with detailed filing, record-retention and other rules that hamper lawyer advertisers but seem to be disregarded by nonlawyer lead-generation enterprises on the internet. Little did we know that, at least in Connecticut, consumer protection officials are already investigating lawyer advertising.

In a case captioned Harris v. Kimmels & Silverman, pending in Hartford, the commissioner of the Connecticut Department of Consumer Protection sought an order compelling a Pennsylvania law firm with an office in Danielson to comply with a civil investigative demand concerning its advertising and business practices in soliciting and representing Connecticut consumers in connection with “Lemon Law” claims. After a complaint from a client, department investigators viewed Kimmels & Silverman’s website, were apparently concerned about some of the information found there, and wondered if Connecticut clients were being given proper advice and guidance through the thicket that is Lemon Law jurisprudence. They asked the firm to give them a list of Connecticut clients, and information about fees and expenses charged.

Kimmels & Silverman did what the Rules of Professional Conduct mandate when a lawyer is asked for client information: it raised the issue of privilege. Consumer Protection asked the court to order compliance. In a decision dated Dec. 5, 2016, Judge Sheila A. Huddleston overruled the privilege claims and ordered compliance, at least insofar as providing a list of all clients for the last four years, redacted settlement statements for any cases where there was an award, and statements as to fees and costs incurred by clients in cases where there was no award.

Her decision didn’t really plow any new ground in the field of privilege: there is a big difference between the rule of confidentiality, which mandates that we not discuss anything about clients or their cases; and privilege, an evidentiary concept that is closely read and shields only certain limited aspects of attorney-client interaction from official inquiry.

What is interesting is that she cited Supreme Court authority for the department investigating and enforcing advertising laws against law firms going back several decades. What no one seems to have raised is that, since those cases were decided, the Judicial Branch created and implemented a detailed, nuanced, and highly structured attorney advertising regulatory scheme.

Our Constitution grants to each branch of government its own regulatory powers. In cases such as the recent Persels v. Banking Commissioner, our Supreme Court has asserted that regulation of lawyers is particularly, and exclusively, the province of the Judicial Branch, not something an executive branch agency can enjoy. (Think field pre-emption and separation of powers from your con law class.)

Yes, there was a time when regulating lawyers was done jointly by all three branches of government; parallel statutes and practice book provisions covered many of the minutiae of civil practice, lawyer advertising and attorney discipline. Executive branch agencies enjoyed co-authority over lawyers with the courts. Those days seem over. For the past decade or more, the Connecticut Practice Book has been amended without any attention to statutes which, in many instances, now starkly conflict. For instance, the process of lawyer discipline found in the Practice Book, including the Office of Disciplinary Counsel, is very different from that found in the statutes, where there is not even an acknowledgment that Disciplinary Counsel exists. Another example can be found in the dustup over the rules of statutory construction in and after State v. Courchesne.

My concern is, with many folks regulating the same thing, lawyers may be whipsawed between differing and competing interpretations of laws, rules and opinions. If I bring my ad to the Grievance Committee and obtain an advisory opinion that it is OK, does Consumer Protection still have power to say that it is not? What about the converse? Who settles the conflict?

When I was Disciplinary Counsel, I worked very closely with executive branch agencies, such as the departments of Banking and Consumer Protection. When the Banking commissioner’s jurisdiction over lawyers was challenged by Persels, I sent him a letter of support. But the Supreme Court has said I was wrong. Since then, the Judicial Branch now regulates even the admission of out-of-state lawyers to practice before executive branch agencies.

I guess no one gave Consumer Protection the memo.

My colleague Sergei Lemberg and I recently wrote about the challenging patchwork quilt that state lawyer advertising regulations present to members of the bar who advertise nationally and those of us who advise them. Near the end of the article we suggested that maybe advertising regulation should be left to consumer protection folks, where the focus would be on content, truthfulness and the lack of unfair trade practices, instead of compliance with detailed filing, record-retention and other rules that hamper lawyer advertisers but seem to be disregarded by nonlawyer lead-generation enterprises on the internet. Little did we know that, at least in Connecticut, consumer protection officials are already investigating lawyer advertising.

In a case captioned Harris v. Kimmels & Silverman, pending in Hartford, the commissioner of the Connecticut Department of Consumer Protection sought an order compelling a Pennsylvania law firm with an office in Danielson to comply with a civil investigative demand concerning its advertising and business practices in soliciting and representing Connecticut consumers in connection with “Lemon Law” claims. After a complaint from a client, department investigators viewed Kimmels & Silverman’s website, were apparently concerned about some of the information found there, and wondered if Connecticut clients were being given proper advice and guidance through the thicket that is Lemon Law jurisprudence. They asked the firm to give them a list of Connecticut clients, and information about fees and expenses charged.

Kimmels & Silverman did what the Rules of Professional Conduct mandate when a lawyer is asked for client information: it raised the issue of privilege. Consumer Protection asked the court to order compliance. In a decision dated Dec. 5, 2016, Judge Sheila A. Huddleston overruled the privilege claims and ordered compliance, at least insofar as providing a list of all clients for the last four years, redacted settlement statements for any cases where there was an award, and statements as to fees and costs incurred by clients in cases where there was no award.

Her decision didn’t really plow any new ground in the field of privilege: there is a big difference between the rule of confidentiality, which mandates that we not discuss anything about clients or their cases; and privilege, an evidentiary concept that is closely read and shields only certain limited aspects of attorney-client interaction from official inquiry.

What is interesting is that she cited Supreme Court authority for the department investigating and enforcing advertising laws against law firms going back several decades. What no one seems to have raised is that, since those cases were decided, the Judicial Branch created and implemented a detailed, nuanced, and highly structured attorney advertising regulatory scheme.

Our Constitution grants to each branch of government its own regulatory powers. In cases such as the recent Persels v. Banking Commissioner, our Supreme Court has asserted that regulation of lawyers is particularly, and exclusively, the province of the Judicial Branch, not something an executive branch agency can enjoy. (Think field pre-emption and separation of powers from your con law class.)

Yes, there was a time when regulating lawyers was done jointly by all three branches of government; parallel statutes and practice book provisions covered many of the minutiae of civil practice, lawyer advertising and attorney discipline. Executive branch agencies enjoyed co-authority over lawyers with the courts. Those days seem over. For the past decade or more, the Connecticut Practice Book has been amended without any attention to statutes which, in many instances, now starkly conflict. For instance, the process of lawyer discipline found in the Practice Book, including the Office of Disciplinary Counsel, is very different from that found in the statutes, where there is not even an acknowledgment that Disciplinary Counsel exists. Another example can be found in the dustup over the rules of statutory construction in and after State v. Courchesne.

My concern is, with many folks regulating the same thing, lawyers may be whipsawed between differing and competing interpretations of laws, rules and opinions. If I bring my ad to the Grievance Committee and obtain an advisory opinion that it is OK, does Consumer Protection still have power to say that it is not? What about the converse? Who settles the conflict?

When I was Disciplinary Counsel, I worked very closely with executive branch agencies, such as the departments of Banking and Consumer Protection. When the Banking commissioner’s jurisdiction over lawyers was challenged by Persels, I sent him a letter of support. But the Supreme Court has said I was wrong. Since then, the Judicial Branch now regulates even the admission of out-of-state lawyers to practice before executive branch agencies.

I guess no one gave Consumer Protection the memo.