By the Courts, for the Bar: Judicial Exemption of Lawyers from the Scope of Consumer Protection Laws


The highest courts in a number of states have invoked the principle of separation of powers in order to insulate lawyers from liability under consumer protection laws. The courts have held that regulation of the bar is a judicial function and cannot be exercised by the legislature through consumer protection statutes prohibiting deceptive trade practices (often called Deceptive Trade Practices Acts, or DTPAs). This article exposes a number of problems with these state court decisions. First, courts rely on the assumption that these DTPAs “regulate” lawyers in a way that treads on the judicial branch’s authority. Anexplicit justification of this assumption would have broader consequences. Second, courts fail to ask whether judicial regulation of lawyers fares any better under separation of powers analysis than legislative regulation of lawyers. Asystemic bias of judges in favor of lawyers is at work in these opinions, which courts should counteract by giving deference to the constitutional and statutory interpretations of other branches. Courts should increase deference to legislaturesby abandoning the “clear statement rule” that reads lawyers out of DTPAs as written. Finally, courts should seriously consider the statutory interpretation undertaken by state attorneys general, both because these officers are often charged with enforcing DTPAs and because they are the most obvious officials to look to for the executive branch’s interpretation of a statutory provision.

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This article aims to point out that the understanding of freedom in the U.S. legal system is too narrow since it disregards other significant aspects of freedom.