Heslin v. Connecticut Law Clinic of Trantolo and Trantolo

• Court: Supreme Court of Connecticut
• Writing for the Court: PETERS; PARSKEY
• Citation: 461 A.2d 938,190 Conn. 510
• Parties: Mary M. HESLIN, Commissioner of Consumer Protection v. CONNECTICUT LAW CLINIC OF TRANTOLO AND TRANTOLO.
• Decision Date: 28 June 1983

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461 A.2d 938 190 Conn. 510 Mary M. HESLIN, Commissioner of Consumer Protection
v.
CONNECTICUT LAW CLINIC OF TRANTOLO AND TRANTOLO. Supreme Court of Connecticut. Argued March 10, 1983.
Decision Released June 28, 1983.

[190 Conn. 511] David E. Ormstedt, Asst. Atty. Gen., with whom, on brief, were Joseph I. Lieberman,

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Atty. Gen., and Robert M. Langer, Asst. Atty. Gen., for appellant (plaintiff).

Maxwell Heiman, Bristol, with whom, on brief, was William J. Tracy, Jr., Bristol, for appellee (defendant).

Before [190 Conn. 510] PETERS, PARSKEY, SHEA, SPONZO and SPADA, JJ.

[190 Conn. 511] PETERS, Associate Justice.

The principal issue in this appeal is whether an investigative demand of Mary M. Heslin, the Connecticut Commissioner of Consumer Protection (commissioner), issued to attorneys suspected of engaging in deceptive trade practices, exceeds the commissioner's statutory authority and unlawfully exercises a power vested by the constitution of Connecticut exclusively with the state judiciary. The case arose when the defendant, Connecticut Law Clinic of Trantolo & Trantolo, refused to comply with an investigative demand issued to it by the plaintiff commissioner pursuant to the Connecticut Unfair Trade Practices Act. [190 Conn. 512] General Statutes §§ 42-110a through 42-110q ¹ (CUTPA, the act). Upon the defendant's refusal to comply, the commissioner sought an order requiring compliance from the Superior Court. ² The trial court, holding the regulation of attorney conduct to be a matter exclusively within the control of the judicial branch of the state government, dismissed the commissioner's application. From this judgment of dismissal, the commissioner has appealed. We find error and remand for further proceedings.

[190 Conn. 513] The investigative demand in controversy, in accordance with General Statutes § 42-110d(c), ³ provided the defendant with a description of the alleged practices under investigation. These alleged practices included unfair or deceptive use of the terms "clinic" and "law clinic" in the defendant's advertising, misrepresentations by the defendant as to its fees and as to the fees of other attorneys performing the same services, and referrals by the defendant to the law firm of Trantolo & Trantolo, which caused those referred to pay higher legal fees than the fees advertised by the defendant. The commissioner's demand required the defendant to respond to interrogatories and produce documentation concerning: the number of persons employed by the defendant, contracts and fee agreements between the defendant and its clients, fees actually paid to the defendant by its clients, advertisements placed by the defendant, and the

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defendant's relationship with the law firm of Trantolo & Trantolo.

Under CUTPA, issuance of an investigative demand upon any person must be predicated upon the commissioner's suspicion that the person is using, has used or is "about to use any method, act or practice declared by section 42-110b to be unlawful," or upon the commissioner's wish to obtain assurance from the person "that section 42-110b has not, is not or will not be violated." General Statutes § 42-110d(c). The aforementioned § 42-110b, which is the substantive keystone of the act, provides, in subsection (a): "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." On appeal, the defendant urges us to hold, as did the trial court, that application of § 42-110b(a) to attorney conduct would violate [190 Conn. 514] the doctrine of separation of powers, and that consequently an investigation into such conduct may not be enforced by the courts.

I

Preliminarily, it is necessary to consider the commissioner's claim that the trial court acted prematurely by inquiring, in the context of proceedings to enforce an investigative demand, into the commissioner's ultimate authority to regulate attorney conduct. In support of her contention, which was considered and rejected by the trial court, the commissioner relies on our decision in In re Application of Ajello v. Moffie, 179 Conn. 324, 426 A.2d 295 (1979). In that case, which involved a proceeding initiated by the attorney general to enforce an investigative subpoena based on suspected violations of the Connecticut Anti-Trust Act; General Statutes § 35-42; we held: "While courts which enforce such subpoenas may inquire into most questions of legality, they may not inquire into questions concerning the coverage or even the probable coverage of the statute under which the attorney general is acting." Id., 326, 426 A.2d 295.

The holding in Ajello was based on our recognition that the legislature, when it endows an administrative body with responsibility for a statute's enforcement, may authorize that body, rather than the trial court, "to determine the question of coverage in the preliminary investigation of possibly existing violations." Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 214, 66 S.Ct. 494, 508, 90 L.Ed. 614 (1946); New Orleans Public Service, Inc. v. Brown, 507 F.2d 160, 165 (5th Cir.1975). An administrative body so empowered may, by virtue of such authority, develop, without interference or delay, a factual basis for the determination of whether particular activities come [190 Conn. 515] within its regulatory authority. Securities & Exchange Commission v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1052-53 (2d Cir.1973). It is presumed that, in authorizing such investigations, the legislature has delegated to the administrative body a power which the legislature lawfully possesses. Where, however, a colorable claim is made that the preliminary investigation is not "within the power of [the legislature] to command"; Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. at 209, 66 S.Ct. at 505; that presumption is rebutted. It then becomes necessary and proper for the trial court to determine, before proceeding further, "the authority of [the] administrative agency to act." Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979).

We observe in the present case that the defendant's motion to dismiss did not merely dispute the coverage of the Unfair Trade Practices Act, but questioned as well the legislature's constitutional power to regulate attorney conduct. The commissioner concedes that, absent such a power in the legislature, the commissioner had no authority to issue the investigative demand in question. We conclude that in response to the defendant's constitutional claim, the trial court's ruling on the motion to dismiss was not premature. We therefore turn to the merits of that ruling.

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II

Although the trial court, in addressing the constitutional question, assumed that CUTPA applies to the defendant, our inquiry on review must begin with whether the act authorizes the commissioner to regulate attorney conduct. We conclude that it does.

CUTPA was designed by the legislature to "put Connecticut in the forefront of state consumer protection." 16 H.R.Proc., Pt. 14, 1973 Sess., p. 7324 (remarks of [190 Conn. 516] Representative Howard A. Newman). It endows the commissioner with broad powers: to investigate suspected violations of the act; General Statutes § 42-110d(a)-(c); to define, through the promulgation of regulations, what may constitute unfair or deceptive acts or practices; General Statutes § 42-110b(c); and to subpoena witnesses, conduct hearings, and issue cease-and-desist orders to persons determined to have violated the act. General Statutes § 42-110d(d). The commissioner may also seek enforcement of the act in the Superior Court; id.; which is authorized to enjoin violations of the act and to "make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any practices prohibited by this chapter ...." General Statutes § 42-110d(e). ⁴

CUTPA contains no language expressly including or excluding attorneys from its purview. Since the defendant does not claim that it falls within one of the act's general exceptions, ⁵ the question on appeal is whether [190 Conn. 517] the provision of legal services constitutes "the conduct of any trade or commerce." General Statutes § 42-110b(a). The act defines trade or commerce as "the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." General Statutes § 42-110a(4).

It is not surprising that CUTPA is textually inconclusive on the question of whether the practice of law is included within the conduct of trade or commerce. In 1973, ⁶ before lawyers engaged in advertising and when few lawyers were incorporated, existing precedents tended to exclude the work of the legal profession from the category of trade or commerce. See, e.g., Federal Club v. National League, 259 U.S. 200, 209, 42 S.Ct. 465, 466, 66 L.Ed. 898 (1922); Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 414, 165 A. 211 (1933). CUTPA antedated, by several years, the seminal case of Bates v. State Bar of Arizona, 433 U.S. 350, 380-82, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977), which held that advertising by lawyers was protected as commercial speech within the ambit of the first amendment. The court there noted that any historical foundation for restraints on advertising has crumbled, "[s]ince the belief

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that lawyers are somehow 'above' trade has become an anachronism." Id., 371-72, 97 S.Ct. at 2702-03. At the same time, it recognized that, in order to cope with the risks of misleading or deceptive advertising, "the vigilance of a regulatory agency will be required." Id., 379, 97 S.Ct. at 2707.

We need not speculate about the intent of...