Copyright 2014

Proposal Means Showdown on Who Can Practice Law

A few days ago a proposed change to the pro hac vice rule was forwarded to the full judges' meeting by the Rules Committee. If passed this June, it may set the stage for a showdown between the branches of government that has been brewing for some time. Maybe that's a good thing.

The proposed change would expand the universe of proceedings for which pro hac vice admission is needed from court matters and arbitrations to all proceedings "before any municipal or state agency, commission, board or tribunal."

Many state agencies such as the Department of Labor, Commission on Human Rights and Opportunities, Department of Education, Public Utilities Regulatory Authority, Workers' Compensation Commission and others allow both lay representation and practice by out-of-state lawyers. So do local planning and zoning boards and commissions, ethics committees, finance boards and a host of others. Now, all those engineers, union representatives, social workers, company officials, next-best friends and others who make it a practice to appear before such panels risk violating Statutes 51-88, which makes the unauthorized practice of law a felony.

When I was in charge of unauthorized practice enforcement, I once asked an assistant attorney general why he let a disbarred lawyer represent an activist group in a licensing proceeding for a nuclear power plant. His answer was that it was easier to deal with one person than a whole room full of them. Similarly, other Executive Branch agencies have adopted both formal and informal protocols allowing lay and out-of-state lawyer representation for administrative convenience. Though some members of the bar complained bitterly, I declined to press unauthorized practice charges in those cases, not on the basis that these representatives were not practicing law, which I think many of them clearly were, as it is defined by Practice Book 2-44A, but rather on separation-of-powers grounds.

Our constitution recognizes three branches of government, and grants to each its "separate majesty." If the executive branch or the legislature wants to allow nonlawyers to appear before it or its agencies or boards, who was I to say no? Rule 5.5 of the Rules of Professional Conduct even allows nonadmitted lawyers to appear before such entities if permitted by rule or custom. This new rule could end all that.

Though proponents of the rule point to the recent Persels case as authority for their position, I think there are earlier precedents. More than a decade ago, the Judicial Branch stopped working with the legislature to pass parallel legislation when it made Practice Book changes. Thus, there are whole swaths of judicial rules that are at odds with what used to be parallel legislation. The rules related to lawyer discipline are a good example. A recent mandamus case over a grievance matter, still pending on a motion to dismiss, highlights some of the disharmony. The petitioner claims the statutes apply, and the respondents, all court officials, claim the Practice Book is the only authority they recognize.

The practice of passing parallel rules and statutes can be found in the anti-ambulance chasing rules found in both the advertising parts of the RPC and the statutes. This practice no longer happens. I have been told that this reflects the Judicial Branch's belief that as a separate and co-equal branch of government, it does not need either executive or legislative approval when it makes rules or regulates the practice of law.

This notion of a strong separation of the branches seemed to be what led to the decision in Bysiewicz v. DiNardo, when the Supreme Court ruled that Susan Bysiewicz's years as Secretary of the State were not the practice of law. It certainly drove the decision in Persels, when the court invalidated a statute regulating lawyers who practice debt-negotiation work as beyond the scope of the legislature's powers.

I had a minor role in Persels when I submitted written testimony in the declaratory proceeding before the banking commissioner urging that lawyers doing debt negotiation and other similar work could be subject to parallel jurisdiction and regulation by both branches of government. A similar analysis had been reached many years earlier in Heslin v. Trantolo, which found lawyers subject to the Department of Consumer Protection with regard to their advertising. Now it seems that positions have hardened and grey areas have become more distinct.

Too bad the courts do not render advisory opinions so we could sort all of this out. We will have to wait for the right case or controversy where, like the Persels lawyers, someone with both a point and a pocketbook will challenge the rule. Alternatively, my former colleagues at the Office of the Disciplinary Counsel could bring an unauthorized-practice complaint against one of the Philistines in the Temple, but considering their lack of resources, they probably are disinclined to prompt an interbranch showdown. Maybe a state's attorney will arrest an out-of-state lawyer at the DOL or a company manager at the CHRO. What fun!