The practice of law in Pennsylvania has been traditionally regulated by the Supreme Court of Pennsylvania. However, recent developments have called into question the presumption that only the court may regulate attorneys, suggesting that it is yielding at least some of that authority to the Pennsylvania legislature under certain circumstances.
In the recently decided case of Yocum v. Pennsylvania Gaming Control Board, the court (in its original jurisdiction) considered the constitutionality of certain provisions of the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. Sections 1101-1904 (the Gaming Act). The court considered the restrictions in the Gaming Act that prohibit employees—including attorneys—at the Pennsylvania Gaming Control Board from soliciting, recommending or accepting employment with a licensed gaming facility for the period of two years after the termination of their employment with the board.
The petitioner in Yocum filed a legal challenge on the grounds that Article V, Section 10 of the Pennsylvania Constitution gives the Supreme Court exclusive authority to regulate the practice of law. Thus, she argued, the only body with the authority to issue the restrictions at issue in was the court, and not the legislature.
The court disagreed in a sharply divided 4-3 opinion. The majority held that the petitioner failed to overcome her burden in challenging the constitutionality of the Gaming Act under the plain language of the Pennsylvania Constitution. Notably, the court held that “employment restrictions do not infringe on this court’s authority to regulate the practice of law when they regulate the conduct of all employees, rather than attorneys only.” In doing so, the court refused to create an exemption for attorneys for legislature-created restrictions that broadly applied to all employees.
In this case, it was noteworthy that the restrictions were “based on a sound and salutary policy: to prevent conflicts of interest, or appearances thereof.” Under these circumstances, “regulation of the practice of law is not the goal of the legislation,” as it was not specifically targeted at attorneys. In fact, the court did not believe that Rule 1.11 of the Pennsylvania Rules of Professional Conduct was broad enough to address the conflict-of-interest scenarios that were anticipated by the legislation at issue. Moreover, it observed, the language of Rule 1.11(d) specifically provided that attorneys may be subject to other statutes or regulations.
The dissent, however, strenuously disagreed that the court’s jurisdiction was not infringed when regulation was directed at a large class of employees, some of which happened to be attorneys. According to the dissent, any regulation on attorneys infringes on the court’s exclusive jurisdiction. It disagreed with the notion that the General Assembly essentially has the latitude to regulate the practice of law “provided it does not appear to intend to do so in a targeted fashion.” In its view, the mere restriction of an attorney’s ability to practice law infringed on the court’s exclusive regulatory authority.
The petitioner relied on the past Supreme Court decisions in Shaulis v. PennsylvaniaState Ethics Commission and Wajert v. Pennsylvania State Ethics Commission in support of her arguments, but the court distinguished both of these cases because they did not involve restrictions that applied to all employees. Rather, in both of those cases, the Pennsylvania Supreme Court had held that restrictions in the State Ethics Act violated the Pennsylvania Constitution because they specifically targeted attorneys. Indeed, in Shaulis, the challenge involved limitations on legal practice after the petitioner’s employment at the Pennsylvania Department of Revenue. The provision at issue there stated: “No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body.” In Wajert, a former common pleas judge had challenged a nearly identical Ethics Act provision, which was similarly ruled to be an unconstitutional infringement on the Court’s authority to govern attorneys’ conduct.
This is a significant decision when evaluating how attorney conduct may be regulated going forward. The majority noted that the court has the exclusive authority to regulate attorney conduct that arose simply by virtue of someone being an attorney and engaging in the practice of law. However, “such exclusivity does not have the effect of preventing attorneys from being subject to other kinds of liability or judicial process.”
The practical import is that attorneys must be vigilant when determining the standards by which their conduct is governed. It is not enough to consider simply the Rules of Professional Conduct. Attorneys must also consider whether they are part of any broader classes, such as lobbyists or government affairs specialist, which could give rise to additional regulations on their conduct, and remain vigilant in complying with those regulations, in addition to their ethical duties as attorneys. Attorneys can no longer safely assume that only the Pennsylvania Supreme Court can regulate their conduct. •