As I approach the 40-year milepost as a lawyer, I often muse on the role of law, lawyers and courts in the warp and weave of our society. For instance, the recent Connecticut Supreme Court education-funding decision is fascinating in many ways, including as a study of separation-of-power principles.
Recent rumblings over the appointment of Andrew MacDonald as chief justice, because he’s considered an activist jurist prone to legislating from the bench, reminds us that much as we lawyers think we have all the answers, many don’t agree. Identifying appropriate spheres of conduct and the proper roles of lawyers and judges remains important.
Consider, therefore, three cases, each of which helped illuminate the boundaries of the appropriate role of courts. The first was L’affaire Bysiewicz, eight years ago, in which former Secretary of the State Susan Bysiewicz, anticipating a challenge that she did not meet statutory grounds as having been a practicing lawyer before announcing her run for attorney general, sought a court ruling that her work as Secretary of State qualified as practicing law. I was chief disciplinary counsel at the time and was charged, among other things, with enforcing the state’s prohibition on the unauthorized practice of law. As such, I needed to understand what the practice of law involved. Judge Michael Sheldon, who had the case on the trial bench level, asked me for a brief on the issue.
My argument was that though her work advising the public and state and municipal officials about legal matters within her authority was very similar to what lawyers do when advising clients, it was political activity and not the practice of law. I pointed out that holding otherwise might end up with one branch of government regulating another. Imagine, for instance, an unhappy constituent filing a grievance over the fact that Secretary Bysiewicz didn’t return their calls. If answering legal questions by a political official was practicing law, then getting them wrong might mean they’d find themselves in the disciplinary dock on competence (Rule 1.1) grounds. You see the problem. Though Judge Sheldon didn’t buy my argument, the Supreme Court did.
The second case, Persels v. Commissioner, involved a challenge by a Maryland law firm to the banking commissioner’s authority to apply banking laws and regulations to lawyers who advised clients on debt collection, foreclosure, credit repair and related matters. As disciplinary counsel, I had worked with the commissioner’s office and the attorney general on trying to rein in out-of-state companies and law firms offering what I thought were useless foreclosure relief and other services in response to the collapse of the housing market. Because of resource issues (I was the only lawyer in my office doing this work), I was glad for the assistance from the executive branch. The fact that it had broader investigatory powers and the ability to impose huge monetary penalties helped a lot also.
In challenging this approach, the law firm took the position that what it was doing was the practice of law, and allowing the executive branch to regulate it was the exact reciprocal of the concern I had raised in the Bysiewicz situation. My colleague Suzanne Sutton, who had inherited the mantle of unauthorized practice enforcement from me when I retired, agreed with the firm. The trial judge, Elliot Prescott, ruled that some aspects of legal work could be subject to the concurrent jurisdiction of both the executive and judicial branches. The Supreme Court reversed, reminding us that regulating the practice of law and the conduct of lawyers had always been the exclusive province of the judicial branch, and that separation-of-power concerns mandated leaving this work to only the courts. In retrospect, my position may have been driven more by expediency than sound legal analysis. Touché.
The recently concluded education-funding case ultimately boiled down to whether the state’s method of allocating education funding violated our constitution’s mandate to provide free and adequate education to all children. (I am terribly oversimplifying here, but I think my analysis is correct.) As a selectman of a small town, I had railed for years that the cost-sharing formula was skewed, wrongheaded and nuts. Judge Thomas Moukawsher, himself a former legislator, ruled that the system was broken and gave the Legislature 180 days to come up with something better. I thought he was spot-on. On appeal however, the Supreme Court deferred to the Legislature on separation-of-power grounds.
As lawyers, we have the skills, knowledge and training to solve many of society’s problems. But figuring out which problems is as much an art as a science. I’ve been wrong in two out of three instances in which I tried to discern the often fuzzy limits of judicial power. I’m not sure I’m ready to give up, though.
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.