FTC Staff Comment to Mr. Carl E. Testo, Counsel, Rules Committee of the Superior Court, Concerning Proposed Rules on the Definition of the Practice of Law in Connecticut

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Competition
Bureau of Economics
May 17, 2007
By email and first class mail
Rules Committee of the Superior Court
Attn: Carl E. Testo, Counsel
P.O. Box 150474
Hartford, CT 	06115-0474
Re: 	Proposed Section 2-44A of the Rules of the Superior Court entitled “Definition of
the Practice of Law”
Dear Mr. Testo:
The Staff of the Federal Trade Commission’s (“FTC” or “Commission”) Office of Policy
Planning, Bureau of Competition, and Bureau of Economics1 is pleased to submit these
comments on Proposed Section 2-44A of the Rules of the Superior Court entitled “Definition of
the Practice of Law” (“§ 2-44A” or “proposed rules”).2 We understand that the Proposed Rules
were made available for public comment on May 8, 2007, and although comments must be
received by May 16, 2007, you will accept comments filed electronically on May 17, 2007.
The FTC Staff believe that non-attorneys should be permitted to compete with attorneys
in areas where no specialized legal knowledge and training is demonstrably necessary to protect
the interests of consumers. We are concerned that the Proposed Rules could be interpreted in an
overly-broad manner, which would have an adverse effect on competition and consumers. We
recommend that the Committee clarify the rules to provide ample guidance to the public as to
what types of conduct the Court will and will not consider punishable as the unauthorized
practice of law. Further, we recommend that such modifications and clarifications be guided by
the principle that only services requiring the skill or knowledge of a lawyer be reserved as the
practice of law.
1 	This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Competition, and Bureau of Economics. The letter does not necessarily represent the views of the Federal Trade
Commission or of any ind ividual Com missioner. The Comm ission has, however, voted to autho rize us to subm it
these comments.
2 	The proposed rules are available in the May 8, 2007 edition of the Connecticut Law Journal, available at
http://www.jud.ct.gov/Publications/PracticeBook/pblj_050807.pdf.

Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 2 of 8
The Interest and Experience of the Federal Trade Commission
The FTC is entrusted with enforcing, among other things, the federal antitrust laws. The
FTC works to promote free and unfettered competition in all sectors of the American economy.
The United States Supreme Court has observed that “ultimately competition will produce not
only lower prices, but also better goods and services. ‘The heart of our national economic policy
long has been faith in the value of competition.’”3 Consumers of professional services, like all
consumers, benefit from competition.4 If competition to provide such services is restrained,
consumers may be forced to pay higher prices or accept lower quality services.
The FTC Staff is concerned about efforts across the country to prevent non-attorneys
from competing with attorneys through the adoption of excessively broad restrictions by state
courts, state bars and legislatures. The FTC and its Staff encourage competition through
advocacy letters and amicus curiae briefs filed with state supreme courts. Through these letters
and filings, the FTC has urged several states, the American Bar Association, and many state bar
associations to reject or narrow such restrictions on competition between attorneys and non-
attorneys.5 Many of these advocacy efforts have been successful in preserving attorney/non
3 Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679 , 695 (1978 ) (quoting Standard Oil Co. v. FTC, 340
U.S. 231 , 248 (1951)); accord FT C v. Superior Cou rt Trial Lawyers Ass’n, 493 U.S. 411 , 423 (1990 ).
4 See, e.g., Pro f’l Eng’rs, 435 U.S. at 689 ; Goldfarb v. Virginia State Bar, 421 U.S. 773 , 787 (1975); see also United
States v. Am. Bar Ass’n, 934 F. Sup p. 43 5 (D .D.C . 199 6), mo dified, 135 F. Supp . 2d 28 (D.D .C. 2001).
5 See, e.g. joint letter from the FT C and Justice Department to the Comm ittee on the Jud iciary of the New York State
Assembly (June 21, 2006) available at http://www.ftc.gov/os/2006/06/V060016NYUplFinal.pdf; joint letter from
the FTC and Justice Department to Executive Director of the Kansas Bar A ss’n (Feb. 4, 2005) available at
http://www.ftc.gov/be/v050002.pdf; joint letter from the FTC and Justice Department to Task Force to De fine the
Practice of Law in Massachusetts, Massachusetts Bar Ass’n ( Dec. 16, 2004) ava ilable a t http://www.ftc.gov/os/
2004/12/041216massuplltr.pdf; joint letter from the FTC and Justice Department to Unauthorized Practice of Law
Comm ittee, Indiana State Bar Ass’n (Oct. 1, 2003) ava ilable a t http://www .ftc.gov/o s/200 3/10 /uplindiana.htm ; joint
letter from the FTC and Justice Department to Standing Committee on the Unlicensed Practice of Law, State Bar of
Georgia (M ar. 20, 2003) ava ilable a t http://www .ftc.gov/b e/v03 000 7.htm; joint letter from the FTC and Justice
Department to the Task Force on the Model Definition of the Practice of Law, American Bar Ass’n (Dec. 20, 2002)
ava ilable a t http://www .ftc.gov/opa/2002 /12/lettertoab a.htm; joint letter fro m the F TC and Justice D epartment to
Speaker o f the Rhode Island House of Representatives, et al. (Mar. 29, 2002 ) ava ilable a t http://www.ftc.gov/be/
v020013.pdf; joint letter from the FTC and Justice Department to President of the North Carolina State Bar (July 11,
2002) ava ilable a t http://www.ftc.gov/os/2002/07/non-attorney involvment.pdf; joint letter from the FTC and Justice
Department to Ethics Committee of the North Carolina State Bar (Dec. 14, 2001) ava ilable a t http://www.ftc.gov/
be/V 020 006 .htm; joint letter from the FTC and Justice Department to Supreme Co urt of Virginia (Jan. 3, 1997);
joint letter from the FTC and Justice Department to Virginia State Bar (Sept. 20 , 199 6). See also Brief Amicus
Curiae of the United States of America and the FTC in Lorrie McMahon v. Advanced Title Servs. Co. of W. Va., No.
31706 (May 25, 20 04) available at http://www .usdoj.gov/atr/cases/ f203 700 /203 790 . htm; Brief Amicus Curiae of
the United States of A merica and the FT C in O n Review of ULP Advisory Op inion 2003 -2 (July 2 8, 20 03) availab le

6
Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 3 of 8
attorney competition.6 These comments are part of our ongoing efforts in this area.
The Proposed Rules
By statute non-attorneys are prohibited from practicing law in Connecticut.7 The statute,
however, leaves defining what constitutes the practice of law to the Connecticut Judiciary.8 The
Proposed Rules would codify the definition of the practice of law, which historically has been
defined in Connecticut through court decisions.
The Proposed Rules would expressly forbid non-attorneys from holding themselves out as
being qualified to practice law,9 from representing parties in court and other identified tribunals,10
and from engaging in other conduct that may indicate the occurrence of the authorized practice of
law as defined by statute, ruling or other authority.11 The Proposed Rules would also allow non-
attorneys to perform several tasks that otherwise may be considered the practice of law.12 For
example, they would allow non-attorneys to sell legal documents or forms approved by a
Connecticut lawyer,13 serve as neutral mediators in dispute resolution,14 and allow non-attorneys
to participate in labor negotiations under collective bargaining agreements.15 Also, the Proposed
at http://www.usdoj.gov/atr/cases/f201100/201197.htm.
For example, the bill that was the subject of recent joint FTC and Justice Department comments to the New Yo rk
State Assembly on April 27, 2007 was rejected by the Committee on the Judiciary. Similarly, in Kansas, following a
February, 2005 joint letter, the Bar has tabled the proposed rules limiting attorney/non-attorney competition in a
wide array of services that do not req uire the skill or knowledge of law yer. Also , comments provided to the N orth
Carolina B ar in 20 01 and 2002 resulted in the bar ado pting an ethics o pinion that allowed for non-attorneys to
provide se ttlement services.
7 Conn. Gen. Stat. § 51-88.
8 Conn. Gen. Stat. § 51-80. The legislature expressly omitted from the practice of law such things as a town clerk
preparing deeds, mortgages, releases, and various certificates, self-representation in legal matters, and issues
concerning out-of-state attorneys engaged in specific proceed ings. Co nn. Gen. Stat. § 51-88(d ).
9 See § 2-44A(a)(1).
10 See § 2-44A(a)(4).
11 See § 2-44A(a)(2), (3), (5) & (6).
12 See § 2-44A(b).
13See § 2-44A(b)(1 ).
14See § 2-44A(b)(3 ).
15 See § 2-44A(b)(4 ).

Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 4 of 8
Rules would allow non-attorneys to perform any tasks the Connecticut Courts had previously,
“determined do not constitute the practice of law.”16
The Proposed Rules Are Likely to Restrict Consumer Choice
The FTC Staff recognizes that there are some services requiring the specialized
knowledge and skill of a person trained in the practice of law that should be provided only by
attorneys. However, allowing non-attorneys to compete in the provision of certain types of
services that do not require such knowledge and skill permits consumers to select from a broader
range of options, considering for themselves such factors as cost, convenience, and the degree of
assurance that the necessary documents and commitments are sufficient. As the United States
Supreme Court stated:
The assumption that competition is the best method of allocating
resources in a free market recognizes that all elements of a bargain
quality, service, safety, and durability - and not just the immediate
cost, are favorably affected by the free opportunity to select among
alternative offers.17
We understand that Proposed Rule 2-44A is meant to clarify what conduct constitutes the
practice of law. However, some points of the proposal are overly broad and are likely to unduly
restrict attorney/non-attorney competition. For example, Rule 2-44A(a)(2), (3) and (5) may be
read to require an attorney for the selection or modification of legal forms, negotiating regarding
any transaction involving property (real or personal), preparing documents related to the sale of
property, performing real estate closing services, and other services. As noted with similar
proposals in Kansas and Massachusetts, such a broad definition of the practice of law is likely to
unnecessarily restrain competition in service areas that do not necessarily require the skill or
knowledge of a lawyer to perform.18 For example, the proposed rules would appear to limit the
16 § 2-44A(b)(1 1). One commentator has explained that decisions regarding the cond uct of no n-attorneys in
Connecticut are few and relatively old, and there are doubts that they would be upheld if addressed by today’s court.
See Quintin Johnstone , Con necticut U nauthorized P ractice Laws and Some O ptions for their R eform, 36 CTLR 303,
306-10 (W inter, 2004). Johnstone reports that rulings affecting non-attorneys prev ent banks from appea ring as
fiduciaries in a probate matter, prohibit a mutual fund operation from preparing trust and estate documents for
customers and pro viding related ad vice, bar a legal do cument preparation service from preparing wills, living trusts,
name change and divorce documents, and prohibit non-attorneys from providing document preparation for
individuals seeking pro se d ivorce pap ers. Id. at 311-32. Other Court decisions have allowed accountants to provide
tax advice and allow individuals to appear on their own be half in legal matters w ithout represe ntation. Id.
17 Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679 , 695 (1978) (emp hasis ad ded ); accord, FTC v.
Superior Cou rt Trial Lawyers Ass’n, 493 U.S. 411 , 423 (1990 ).
18 See joint letter from the FTC and Justice Department to Executive Director of the Kansas Bar Ass’n (Feb. 4, 2005)
at 5-7 (discussing the types of non-attorney competition that may be restricted under a similar proposal in that
jurisdiction.); see also joint letter from the FTC and Justice Department to Task Force to Define the Practice of Law

Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 5 of 8
ability of non-attorneys to perform certain tasks related to the closing of real estate transactions.
There is empirical evidence, however, that consumers benefit from this competition. Not only
are lay services cheaper, but evidence suggests that the availability of lay service providers puts
competitive pressure on the fees attorneys charge.19 Evidence gathered in a New Jersey Supreme
Court proceeding that allowed lay closings indicated that, in parts of New Jersey where lay
closings are prevalent, buyers represented by counsel paid on average $350 less for closings and
sellers represented by counsel paid $400 less than in parts where lay closings were not
prevalent.20 Likewise, the Kentucky Supreme Court concluded that prices for real estate closings
for lawyers dropped substantially as a result of competition from lay title companies, explaining
that the lay competitors’ presence “encourages attorneys to work more cost-effectively.”21
Given the benefits of competition, any restrictions on competition should be justified by a
valid need for the restriction, such as the need to protect the public from harm, and for the
restriction to be narrowly drawn to minimize its anticompetitive impact.22 The inquiry into the
public interest involves not only an assessment of the harm that consumers may suffer from
allowing non-attorneys to perform certain tasks, but also consideration of the benefits that accrue
to consumers when attorneys and non-attorneys compete.23 As the Restatement (Third) of Law
Governing Lawyers has explained:
Several jurisdictions recognize that many such [law-related] services
can 	be 	provided 	by 	nonlawyers 	without 	significant 	risk 	of
incompetent service, that actual experience in several states with
extensive nonlawyer provision of traditional legal services indicates
no significant risk of harm to consumers of such services, that
in Massachusetts, Massachusetts Bar Ass’n ( Dec. 16, 2004) at 6-9 (same).
19See, e.g., Countrywide Home Loa ns, Inc. v. Ky. Bar Ass’n, 113 S.W .3d 1 05, 1 20 (Ky. 2003 ) (“before title
companies emerged o n the scene, [the Kentucky Bar Association’s] members’ rates for such services were
significantly higher”).
20 See In re Opinion No. 26, 654 A.2d 1344, 1348-49. In 1997, Virginia passed a law upholding the right of
consumers to continue using lay closing services. Proponents of lay competition pointed to survey evidence
suggesting that lay closings in Virginia cost on average more than $150 less than lawyer closing. See letters to the
Virginia Sup reme Court and Virginia State bar, supra n. 5.
21 Countrywide Home Loans, Inc., 113 S.W.3d at 120.
22 Cf. FTC. v. Ind. Fed ’n of Den tists, 476 U.S. 447 , 459 (1986 ) (“Absent some countervailing procomp etitive
virtue,” an impediment to “the ordinary give and take of the market place . . . cannot be sustained under the Rule of
Reason.”) (internal quotations and citations omitted).
23 See Prof’l En g’rs, 435 U.S. at 689 ; Goldfarb v. Va. State Bar, 421 U.S. 773 , 787 (1975). See also In re Opinion
No. 26 of the Comm. on Unauthorized Practice of Law, 654 A.2d 1344, 1345-46 (N.J. 1995) (lawyer/non-lawyer
com petition benefits the pub lic interest).

Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 6 of 8
persons in need of legal services may be significantly aided in
obtaining assistance at a much lower price than would be entailed by
segregating out a portion of a transaction to be handled by a lawyer
for a fee, and that many persons can ill afford, and most persons are
at least inconvenienced by, the typically higher cost of lawyer
services. In addition, traditional common-law and statutory consumer
protection measures offer significant protection to consumers of such
nonlawyer services.24
We are not aware of evidence of consumer harm arising from non-attorneys providing
services which may fall within the scope for the proposed rules that would justify foreclosing
competition. Further, empirical studies have compared attorney and non-attorney provisions of
certain services and have found that consumers likely face little risk of harm from non-attorney
competition in many areas. For example, a study of lay specialists who provide bankruptcy and
administrative agency hearing representation found that they perform as well as or better than
attorneys.25 The 1999 survey found that complaints about the unauthorized practice of law in
most states did not come from consumers, the potential victims of such conduct, but from
attorneys, who did not allege any claims of specific injury.26 Another study compared five states
where lay providers examined title evidence, drafted instruments, and facilitated the closing of
real estate transactions with five states that prohibit lay provision of these settlement services.
The author found “[t]he only clear conclusion” to be “that the evidence does not substantiate the
claim that the public bears a sufficient risk from lay provision of real estate settlement services to
warrant blanket prohibition of those services under the auspices of preventing the unauthorized
practice of law.”27
We recommend that the Committee revisit the rules and provide additional comments and
guidance to avoid unnecessary restraints on attorney/non-attorney competition. For example, the
District of Columbia defines the practice of law as, “the provision of professional legal advice or
services where there is a client relationship of trust or reliance.28 The District of Columbia rule
sets forth several provisions similar to those delineated in § 2-44A, but the District of Columbia
24 A M E R IC A N L A W I NSTITUTE R ESTATEMENT (T HIRD ) OF L A W G OVERNING L AWYERS § 4 cmt. c (2000).
25 Deborah Rhode, Access to Justice: Connecting Principles to Practice, 17 G EO . J. L EGA L E THICS 369, 407-08
(2004). See also H ERBERT M. K RITZER , L EGA L A DVOCACY : L A W Y E R S A N D N O N L AWYERS AT W ORK 50-51 (1998)
(finding that in unemployment compensation appeals before the Wisconsin Labor and Industry Review Comm ission,
“[t]he overall pattern does not show any clear differences between the success of lawyers and agents”).
26 Rho de, sup ra n.22, at 40 7-08 .
27 Joyce Palomar, The Wa r Between Attorneys and Lay Con veyancers – Em pirical Evidence Says “Cea se Fire!”, 31
C O N N . L. R EV . 423, 520 (19 99).
28 D.C. Court of Appeals Rules 49(b)(2) (2004) (outline letters omitted)

Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 7 of 8
also provided commentary to narrow the breadth of the Rule and clarify its purpose. The
commentary sets forth:
As originally stated in sections (b)(2) and (3) of the prior Rule, the
“practice of law” was broadly defined, embracing every activity in
which a person provides services to another relating to legal rights.
This approach has been refined, in recognition that there are some
legitimate activities of non-Bar members that may fall within an
unqualifiedly broad definition of the law. The definition set forth
in section (b)(2) is designed to focus first on the two essential
elements of the practice of law: The provision of legal advice or
services, and a client relationship of trust or reliance. . . . The
presumption that one’s engagement in one of the enumerated
activities is the “practice of law” may be rebutted by showing that
there is no client relationship of trust or reliance, or that there is no
explicit or implicit representation of authority or competence to
practice law, or that both are absent. . . . Tax accountants, real
estate agents, title company attorneys, securities advisors, pension
consultants, and the like, who do not indicate they are providing
legal advice or services based on competence and standing in the
law are not engaged in the practice of law, because their
relationship with the customer is not based on a reasonable
expectation that learned and authorized professional legal advice is
being given. Nor is it the practice of law under the Rule for a
person to draft an agreement or resolve a controversy in a business
context, where there is no reasonable expectation that she is acting
as a qualified or authorized attorney. . . .29
Adding commentary of this type to the Proposed Rules would serve the public interest in
protecting attorney/non-attorney competition. If the Committee is still concerned that consumers
may rely on non-attorneys for services that draw close to those requiring the skill and knowledge
of an attorney, then it would be better addressed by a rule directed more narrowly to prevent
potential harm to consumers than by a broader limit affecting competition. For example, in real
estate closings, instead of banning non-attorney closing services, the New Jersey Supreme Court
requires that consumers be provided a written notice explaining the risks involved in proceeding
29 Id. Comm entary on Rule 49(b)(2).

Rules Committee of the Superior Court
Carl E. Testo, Counsel
May 17, 2007
Page 8 of 8
in a real estate transaction without an attorney.30 This type of disclosure in a specified area of
commerce permits consumers to make an informed choice about whether to use non-attorney
closing services.
Conclusion
The Proposed Rules risk unnecessarily reducing competition between attorneys and non-
attorneys for many services that do not require the skill and knowledge of an attorney, including
closing services related to real estate transactions. We urge the Committee to modify the rules to
insure that competition is not constrained in service areas for which the knowledge and skill of a
lawyer is not required. We also encourage the Committee to consider the competitive impact of
the Proposed Rules, whether areas that will curtail competition will be outweighed by
countervailing benefits to consumers, and whether the Proposed Rules may be more narrowly
drawn to correct for specific and identified market failures.
Respectfully submitted,
Maureen K. Ohlhausen, Director
Office of Policy Planning
Jeffrey Schmidt, Director
Bureau of Competition
Michael A. Salinger, Director
Bureau of Economics
30 In re Opinion No. 26, 654 A.2d at 1363.