I recently wrote about troubling conduct on the part of the commissioner of consumer protection investigating a law firm’s advertising, including demanding to see client lists, fee agreements and settlement statements. I thought that stuff belonged to the Judicial Branch. I have now learned that there are several bills pending at the Legislature also seeking to regulate us, including one mandating malpractice insurance, and another dealing with what suspended or disbarred lawyers can and cannot do. Seems like the walls between the three branches of government established in our constitution are more porous than our Supreme Court thought when it ruled in the recent Persels matter.

Persels dealt with an attempt by the banking commissioner to supervise law firms offering mortgage modification, credit repair and debt-negotiation services—conduct heavily regulated by the executive branch. Much of the analysis dealt with whether this conduct, which could be done by nonlawyers, became the practice of law when done by lawyers. If so, then the court held that authority to discipline and regulate lawyers engaged in the activity was a “fundamental judicial power” and the “sole province of the judiciary.” Banking had no authority. Going one step further, since then, the Judicial Branch has started licensing lawyers to appear pro hac vice at executive branch agencies.

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