Change in Court Rules Could Increase Legal Costs of Connecticut-Licensed Insurers Appearing Before Commissioner
The State of Connecticut recently revised Section 2-16 of the Connecticut Superior Court Rules to require that an attorney not admitted in the State of Connecticut be admitted pro hac vice prior to appearing on behalf of a client before the Connecticut Insurance Department or any other state or municipal government agency. As with any pro hac vice admission in Connecticut, out-of-state attorneys will also be required to retain local counsel as a condition of any appearance.
This represents a significant change from the current procedure. Since 1984, section 38a-8-33 (Appearance and Representation) of the Connecticut Insurance Department regulations has only required an authorized representative of a party to an Insurance Department proceeding to file a simple Notice of Appearance.
Rule 5.5 of the Rules of Professional Conduct of the State of Connecticut appears to support the rule change. The rule states:
A lawyer admitted in another United States jurisdiction which accords similar privileges to Connecticut lawyers in its jurisdiction … may provide legal services on a temporary basis in this jurisdiction, that (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or the person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending proceeding … in this or another jurisdiction … in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within subsections (c) (2) or (c) (3) and arise out of or are substantially related to the legal services provided to an existing client of the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
In turn, Section 2-44A (Definition of the Practice of Law) of the Connecticut Superior Court Rules defines “the practice of law” stating, in relevant part, as follows:
(4) Representing any person in a court or in a formal administrative adjudicative proceeding … in which … a record is established as the basis for judicial review.
One issue that is still unknown is how the state will define “proceeding,” as there is no formal definition. As such, the Commissioner may have some discretion in how this rule is applied. For example, the Commissioner could define “proceeding” broadly to include all actions and petitions, whether contested or uncontested; formal hearings or informal meetings with the Commissioner; or a written reply to a critical report on examination or a market conduct report that does not result in a hearing on the record. This may also include representation of a purchaser of a domestic insurer in filing a Form A Change of Control petition or appearance at an Insurance Department Form A change of control hearing, and so forth.
The Connecticut Insurance Department has confirmed that it is required to amend Section 38a-8-33 by January 1, 2017 to conform to the revision in Section 2-16. However, Burton Cohen, the Chairman of the Unauthorized Practice of Law Committee of the Connecticut Bar Association, believes that any out-of-state attorney who participates in an administrative proceeding now without first being admitted by the court could be viewed as violating Connecticut law for engaging in the unauthorized practice of law.
Mr. Cohen believes that the rule change “levels the playing field as more out of state attorneys are appearing in administrative agency proceedings without demonstrating their qualifications to practice law and without paying into the client security fund and attributing their legal fees to Connecticut for income tax purposes.”
Any lawyer seeking to represent clients in a matter before the Connecticut Insurance Department is therefore cautioned to be aware of the potential ramifications of not seeking admission pro hac vice before accepting the assignment, particularly if the matter could involve a “proceeding,” as that term may be broadly construed.