Mark Dubois ()
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.
I’m not sure the other two branches of government totally agree with the broader implications of Persels. Chapter 876 of the General Statutes deals with the regulation of lawyers. It runs the gamut, from admission to disciplinary procedures, to mandatory terms of disbarment in cases of criminal convictions. It includes such things as defining the unauthorized practice of law, lawyer advertising and what types of evidence are admissible in lawyer grievance hearings.
Sometimes, the statutes and the Practice Book are coordinated and form a cohesive body of regulation, such as unauthorized practice of law and the operation of the IOLTA and Client Security Fund programs. Other things, like the establishment and collection of the occupational tax, are only found in the statutes, though the rule in question references a “roll of attorneys” maintained by the clerk of the Hartford court which, to my knowledge, no longer exists. Some areas are wildly incongruous, such as the statutes dealing with lawyer discipline. The procedure found there is completely different from that at the Statewide Grievance Committee.
Where malpractice insurance fits into this is anybody’s guess. Ditto the regulation of suspended lawyers, who are already governed by a detailed Practice Book rule that only recently went into effect. When speaking to legislators, the easy way to raise some color is to suggest that they should butt out of regulating lawyers and legal matters. Some remember the tense hearings when legislators were considering adopting what became General Statute 1-2z, dealing with the issue of when courts can look at legislative intent in construing a statute. Lawyers arguing that how judges judge is something that belongs solely and exclusively to the Judicial Branch got their ears pinned back. The statute was enacted, mandating that intent was only available when the statute was ambiguous. The Supreme Court quickly ruled that determination of ambiguity was purely a judicial function. Check and mate.
Determining whether the walls between the branches of government are porous, overlapping and shifting; or bright, immobile and insurmountable, may be as much an art as a science. Analysis might include political philosophy, as well as history and law. I suspect that some of the Judicial Branch’s jealousy over its turf relates to the fact that it is tiny compared to its brethren. Its entire budget is less than the school budget of most of our bigger cities. Its entire personnel roster is about 10 percent of total state employees. I remember when Judge Aaron Ment, then chief court administrator, decreed that what the state constitution calls the Judicial Department would henceforward called the Judicial Branch. Some called it the moment the mouse roared—calling to mind the 1950s satirical novel of the same name that told the tale of the mayhem that followed the Grand Duchy of Fenwick declaring war on the United States and sailing its only warship into New York harbor.
Maybe the thing to do is for each branch of government to send two or three emissaries to neutral ground (Providence? Newport?) where they could hash out who controls what, and which areas, if any, are matters of exclusive, coequal or overlapping authority. The resulting treaty would govern whether certain issues—such as whether we should have malpractice insurance, or what disbarred lawyers can and cannot do—are decided at the Rules Committee or the Legislature. And we could all sleep better.