of elephants, mouseholes, and sententious smackdowns
ABA Journal eReport: D.C. Circuit Bench-Slaps FTC for Attempt to Invade Attorney Confidentiality
What is it with the government and attorney-client privilege? The feds just can't seem to stand it these days. (* Someone with insight PLEASE explain it to me!)
First we have the USA PATRIOT Act, which allows feds to listen in on any conversation between detainees and their lawyers (not that they're entitled to due process). And now, the Federal Trade Commission tried to assert the power - under a financial-privacy law - to regulate attorney ethics, especially regarding confidentiality, away from the professional ABA.
The FTC's attempted coup drove the DC Circuit beyond the point of judicious constraint on either metaphors or footnote length:In a blistering opinion, [Circuit Judge] Sentelle borrowed from Supreme Court Justice Antonin Scalia’s opinion in another case: Congress does not "hide elephants in mouseholes."
Sentelle went on to write: "To find this interpretation deference-worthy, we would have to conclude that Congress not only had hidden a rather large elephant in a rather obscure mousehole, but had buried the ambiguity in which the pachyderm lurks beneath an incredibly deep mound of specificity, none of which bears the footprints of the beast or any indication that Congress even suspected its presence."
...The appeals court, apparently showing its exasperation with the FTC’s attempt to shoehorn the practice of law into the definition of "financial institution," included a footnote spread across six pages of the opinion listing all the activities detailed in Title 12.
"Like the statute, the [FTC] regulations at no point describe the statutory or regulatory scheme as governing the practice of law as such," Sentelle wrote.
Lesson: Don't play hide-the-elephant with lawyers when the DC Circuit's in town.
What is it with the government and attorney-client privilege? The feds just can't seem to stand it these days. (* Someone with insight PLEASE explain it to me!)
First we have the USA PATRIOT Act, which allows feds to listen in on any conversation between detainees and their lawyers (not that they're entitled to due process). And now, the Federal Trade Commission tried to assert the power - under a financial-privacy law - to regulate attorney ethics, especially regarding confidentiality, away from the professional ABA.
The FTC's attempted coup drove the DC Circuit beyond the point of judicious constraint on either metaphors or footnote length:In a blistering opinion, [Circuit Judge] Sentelle borrowed from Supreme Court Justice Antonin Scalia’s opinion in another case: Congress does not "hide elephants in mouseholes."
Sentelle went on to write: "To find this interpretation deference-worthy, we would have to conclude that Congress not only had hidden a rather large elephant in a rather obscure mousehole, but had buried the ambiguity in which the pachyderm lurks beneath an incredibly deep mound of specificity, none of which bears the footprints of the beast or any indication that Congress even suspected its presence."
...The appeals court, apparently showing its exasperation with the FTC’s attempt to shoehorn the practice of law into the definition of "financial institution," included a footnote spread across six pages of the opinion listing all the activities detailed in Title 12.
"Like the statute, the [FTC] regulations at no point describe the statutory or regulatory scheme as governing the practice of law as such," Sentelle wrote.
Lesson: Don't play hide-the-elephant with lawyers when the DC Circuit's in town.