For many decades, attorneys have been regulated and disciplined primarily by the state supreme courts that license them and other state and federal courts, not Congress or federal agencies. Consistent with this principle, Congress has generally declined to enact legislation regulating the practice of law, including litigation activities of attorneys. In addition, Congress and federal agencies have often included broad attorney exemptions in certain key statutes and major rules. Recently, however, some federal agencies have undermined the courts’ proper role by imposing excessive litigation rules, standards, and penalties on certain types of attorneys that conflict with well-established court rules applicable to all litigation attorneys. For example, the Consumer Financial Protection Bureau (CFPB) has imposed special due diligence standards, procedural rules, and penalties solely on creditor litigation attorneys that go beyond—and often conflict with—the court rules governing all other types of litigation attorneys. In addition, the CFPB and consumer attorneys routinely sue creditor attorneys and their law firms for alleged violations of these special litigation rules and for alleged technical violations of the Fair Debt Collection Practices Act (FDCPA).
To address these problems, the ABA and its allies in the National Creditors Bar Association (NCBA) are urging Congress to pass H.R. ______, the “Restoring Court Authority Over Litigation Act.” The legislation, sponsored by Rep. Alex Mooney (R-WV), would address these problems and help restore the courts’ proper authority over the litigation process by clarifying that (1) attorneys engaged in litigation should be regulated and disciplined exclusively by the courts, (2) federal agencies have no regulatory authority over attorney litigation activities, and (3) parties in legal actions have no federal private right of action against an opposing attorney for alleged misconduct related to the attorney’s litigation activities. The ABA and NCBA also continue to oppose any proposed regulations by the CFPB or other agencies that would impose excessive litigation rules, standards, or penalties on certain types of attorneys that go beyond or conflict with the court rules that apply to all litigation attorneys.