My board is bigger than your board

[leagleaze]

Statement by ABA President Alfred P. Carlton, Jr. regarding ABA v. FTC

The Federal Trade Commission's attempt to regulate the ethical conduct of attorneys was struck down yesterday in a 60-page opinion by Judge Reggie Walton of the federal district court for the District of Columbia. Ruling on motions to dismiss by the FTC in suits brought by the American Bar Association and the New York State Bar Association, the court held that Congress did not intend the privacy provisions of the Gramm-Leach-Bliley Act to apply to attorneys who provide legal services, noting in particular those who practice in the fields of real estate settlement, tax planning and tax preparation.

In an April 2002 opinion letter, the FTC had taken the position that the privacy provisions of the Gramm-Leach-Bliley Act applied to lawyers engaged in the practice of law and refused to exempt them. As a result of the FTC's interpretation, hundreds of thousands of practicing lawyers were subject to the Act, which required, among other things, that they send written "privacy notices" to their clients explaining their privacy policies even though these same lawyers were subject to the ethical codes of the states which provide stricter regulation of attorney-client privacy and confidentiality. The ABA and the NYSB Association challenged the FTC's interpretation in court, claiming that the agency exceeded its authority and was arbitrary and capricious.

In rejecting the FTC's motions to dismiss, Judge Walton said that "the absence of any explicit statement by Congress that it intended to legislate in an area that was already regulated by existing state regulatory schemes," was the "most convincing evidence" that Congress did not intend the privacy provisions of the Gramm-Leach-Bliley Act to apply to lawyers engaged in the practice of law. The court further held that it would give "no weight" to the FTC's interpretation, saying it "was made without any degree of deliberation, thoughtful consideration, or comments from the public." Finally, the court observed that the FTC's opinion letter "appears to constitute arbitrary and capricious agency action" under the Administrative Procedure Act.

Since Judge Walton was only asked to rule on the government's motions to dismiss, a final judgment in the cases has not yet been entered. The ABA intends to seek a final judgment invalidating the FTC's interpretation.

[Mmmm, Burger (C.J.)]

Originally posted by leagleaze
. . .

The court further held that it would give "no weight" to the FTC's interpretation, saying it "was made without any degree of deliberation, thoughtful consideration, or comments from the public." . . .

Maybe I need to bone up on my Chevron law, but when did deference to an agency's interpretation of a statute that was committed by Congress to the agency's enforcement start to require the agency to seek public comment on its statutory intepretation? The whole point of agency expertise is that the agency is presumed to be expert in the area (right or wrong) and courts should defer to its interpretation of the statute.

Now, the arbitrary and capricious part I could understand, if there was a refusal to listen to the public in rulemaking that was required to have public comment.

[leagleaze]

Originally posted by Mmmm, Burger (C.J.)
Maybe I need to bone up on my Chevron law, but when did deference to an agency's interpretation of a statute that was committed by Congress to the agency's enforcement start to require the agency to seek public comment on its statutory intepretation? The whole point of agency expertise is that the agency is presumed to be expert in the area (right or wrong) and courts should defer to its interpretation of the statute.

Now, the arbitrary and capricious part I could understand, if there was a refusal to listen to the public in rulemaking that was required to have public comment.

Perhaps it would help to actually look at the case, I don't know. I do know that this privacy issue was of great concern to most, and a lot of attorneys still seemed utterly unaware of it.

Had any firms actually sent out privacy statements to their clients? Anyone have any experience with this?

Since I have no clients it isn't something to which I have had to give consideration, other than in an academic sense.

[Mmmm, Burger (C.J.)]

Originally posted by leagleaze
Perhaps it would help to actually look at the case, . . . .

Had any firms actually sent out privacy statements to their clients? Anyone have any experience with this?

1) Are you suggesting an article may have described a legal decision incorrectly?

2) Yes. My firm sent out a number of letters. I forget exactly what they said, since I didn't draft it. But it was something like: "Here's our disclosure as mandated by GLB. We believe we are not required under the law to make this disclosure, but we do so anyway."

[Replaced_Texan]

Originally posted by Mmmm, Burger (C.J.)
Maybe I need to bone up on my Chevron law, but when did deference to an agency's interpretation of a statute that was committed by Congress to the agency's enforcement start to require the agency to seek public comment on its statutory intepretation? The whole point of agency expertise is that the agency is presumed to be expert in the area (right or wrong) and courts should defer to its interpretation of the statute.

Now, the arbitrary and capricious part I could understand, if there was a refusal to listen to the public in rulemaking that was required to have public comment.

Wasn't there an S. Ct. opinion last year or the year before essentially stating that unless it's a regulation that's gone through notice and comment or a matter that's gone through adjudication, then it's of only persuasive value? Notice letters, advisory opinions and guidances aren't, therefore, as binding as regs and ajdudication.

I think it's the US v. Mead case, but I'm not sure.

[leagleaze]

Originally posted by Mmmm, Burger (C.J.)
1) Are you suggesting an article may have described a legal decision incorrectly?

2) Yes. My firm sent out a number of letters. I forget exactly what they said, since I didn't draft it. But it was something like: "Here's our disclosure as mandated by GLB. We believe we are not required under the law to make this disclosure, but we do so anyway."

No, but over the years I have noticed that in an effort to provide an overview of something things sometimes get lost in the shuffle. Or it could be it describes it perfectly. No way to know without looking at the case itself.

[Mmmm, Burger (C.J.)]

Originally posted by leagleaze
No, but over the years I have noticed that in an effort to provide an overview of something things sometimes get lost in the shuffle. Or it could be it describes it perfectly. No way to know without looking at the case itself.

I agree. The opinion does not yet appear to be posted on the dc district court website.

From a quick loot at RT's Mead cite, I now can see how the description in the article would be consistent with an application of Mead to the FTC's letter or whatever it was. Although it strikes me as odd that a purely legal interpretation of a statute should be subject to some sort of notice and comment requirement to be given deference. It's a bit different from some health statute where the determination of "best available" (for example) may require some science.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Although it strikes me as odd that a purely legal interpretation of a statute should be subject to some sort of notice and comment requirement to be given deference. It's a bit different from some health statute where the determination of "best available" (for example) may require some science.

If an interpretation is purely legal, there's less reason to defer to the agency's putative expertise in the area. Analogously, agency interpretations of the Constitution do not get deference.

[leagleaze]

If you want to check and see if you have the msblast virus, here is some useful information on how to do so.

http://online.comcast.net/help/faq-d...p?intFaqID=334

[Replaced_Texan]

Originally posted by Mmmm, Burger (C.J.)
I agree. The opinion does not yet appear to be posted on the dc district court website.

The opinon is up at the New York Bar website. http://www.nysba.org/Content/Content...Memorandum.pdf

It seems to rely heavily on Mead.

[leagleaze]

Apparently Bristish firms plan on asking their associates to work more hours.

http://www.the-lawyer.co.uk/lawyerne...e.asp?id=45665

Guess they are trying to catch up to our overworking ways?

How do you people manage to bill upwards of 2200 or more hours a year anyway? That must mean an incredible amount of time actually in the office.

I'll give you a hint - the ones billing 2200 hours ain't the ones posting on this board.

(I resemble that remark.)

Proposal for New Thread Posting Convention: Let Individual Subjects Get Their Own Threads and Let Members Start New Threads.

I am active on several community bulletin boards that use a discussion forum program similar to this one (pHp, etc) and I think that the functionality of this board could be greatly enhanced. It is far more functional than Infirmation's antiquated Greedy Associates board, but at the same time I don't think we are getting the most out of this forum.

The problem? Users cannot post new threads, at least I can't. Regardless, the end result is that people are posting multiple topics in a single thread. On every other similar type of community forum that I am involved with, individual topics get their own individual threads and discussion is much easier and better organized than just having one single thread within each individual forum. (That's what the city-by-city forums are for--a place to organize these divergent threads.)

Example, the Chicago forum might have 50 individual threads like:

Latham & Watkins happenings

Job openings in Chicago

Restaurants

Layoff Rumor at Firm X

Altheimer disintegrates.

Moving to Chicago--Chicago Housing

Illinois Bar Exam

Bonuses at Sidley

etc.

A forum like the Chicago forum would probably get 15 new threads per month. This system would be far more functional than the current system where all posts on a variety of subjects are limited to just one or two threads per forum leading to disorganized discussion. When I click on a forum I like to see the individual discussion subjects (thread titles) instead of one huge thread with unknown content.

I appreciate the service that LawTalkers provides and I hope that my advice will help to make this a bustling community.

[leagleaze]

You can post new threads in virtually every board already. You simply cannot do it in the three larger boards, politics, fashion and this one. See here for more information. http://www.lawtalkers.com/forums/mis...&page=2#topics

And welcome by the way

[Penske_Account]

Originally posted by Lexus Talionis
I'll give you a hint - the ones billing 2200 hours ain't the ones posting on this board.

(I resemble that remark.)

Speak for yourself. I'll get 2200 before Halloween rears its ugly head. As long as I maintain my abstinence from socking.