[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9393 Introduced in House (IH)]

<DOC>






117th CONGRESS
  2d Session
                                H. R. 9393

To protect State and Federal courts' primary and inherent authority to 
   regulate and oversee the legal profession by prohibiting Federal 
 agencies from regulating licensed attorneys and law firms engaged in 
 litigation activities, prohibiting opposing parties in legal actions 
 from bringing private rights of action against such attorneys and law 
     firms for their litigation activities, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            December 1, 2022

  Mr. Mooney introduced the following bill; which was referred to the 
    Committee on the Judiciary, and in addition to the Committee on 
 Financial Services, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
To protect State and Federal courts' primary and inherent authority to 
   regulate and oversee the legal profession by prohibiting Federal 
 agencies from regulating licensed attorneys and law firms engaged in 
 litigation activities, prohibiting opposing parties in legal actions 
 from bringing private rights of action against such attorneys and law 
     firms for their litigation activities, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restoring Court Authority Over 
Litigation Act of 2022''.

SEC. 2. FINDINGS; SENSE OF CONGRESS.

    (a) Findings.--Congress finds the following:
            (1) For many decades, attorneys engaged in the practice of 
        law have been regulated and disciplined primarily by the 
        highest court of the State in which the attorney is licensed or 
        admitted to practice, attorney disciplinary agencies overseen 
        by those courts, and other State and Federal courts of 
        competent jurisdiction pursuant to the applicable statutes, 
        rules of civil procedure, and rules of professional conduct and 
        disciplinary procedure duly adopted in those jurisdictions, and 
        not by Congress, Federal agencies, or private litigants.
            (2) State supreme courts have promulgated and enforced 
        extensive and effective regulations governing all aspects of 
        the practice of law, including admission requirements, strict 
        attorney rules of professional conduct, disciplinary rules, and 
        litigation procedural rules. In addition, Federal courts have 
        adopted local rules governing the conduct of attorneys 
        appearing before them. As a result, State and Federal courts 
        have extensive authority and tools to address attorney 
        misconduct that occurs during the course of litigation before 
        them, including monetary sanctions, striking offending 
        pleadings or other papers, or referring the matter to 
        disciplinary authorities, which could lead to a reprimand, 
        censure, license suspension, disbarment, or other available 
        disciplinary sanctions.
            (3) Consistent with the longstanding principle of judicial 
        regulation and oversight of attorneys and the legal profession, 
        numerous Federal agencies have included broad practice of law 
        exclusions in major rules, including the Federal Trade 
        Commission's ``Mortgage Assistance Relief Services'' Rule 
        issued in November 2010 and the Department of Housing and Urban 
        Development's ``Secure and Fair Enforcement for Mortgage 
        Licensing Act'' Rule issued in June 2011.
            (4) Also consistent with the principle of judicial 
        regulation of attorneys and the legal profession, Congress has 
        generally declined to enact legislation regulating the practice 
        of law, including litigation activities of attorneys.
            (5) Congress has also incorporated broad practice of law 
        exclusions into certain Federal statutes. For example, section 
        1027(e) of the Consumer Financial Protection Act of 2010 
        excludes most attorneys engaged in the practice of law from the 
        Consumer Financial Protection Bureau's regulatory and 
        enforcement authority, while the Fair Debt Collection Practices 
        Act of 1977 originally contained a complete exemption for 
        attorneys engaged in the practice of law.
            (6) Although Congress removed the complete attorney 
        exemption from the Fair Debt Collection Practices Act in 1986 
        based in part on its belief that the revised Act would only 
        apply to attorneys' non-litigation collection activities and 
        that State courts would continue to regulate attorneys' 
        litigation activities, the United States Supreme Court held in 
        Heintz v. Jenkins, 514 U.S. 291 (1995), that attorneys could be 
        subject to the Act even when they are engaged in litigation 
        activities. As a result, many attorneys now are routinely sued 
        for litigation activities in State court that are alleged to be 
        technical violations of the Act, even when consumers suffer no 
        harm.
            (7) In each of its annual reports to Congress on the Fair 
        Debt Collection Practices Act from 1998 through 2006, the 
        Federal Trade Commission formally recommended that Congress 
        reexamine and amend the definition of ``debt collector'' in the 
        Act to exempt ``attorneys who pursue debtors solely through 
        litigation (or similar `legal' practices).''
            (8) In recent years, the Consumer Financial Protection 
        Bureau has also aggressively sought to regulate attorneys' 
        collection activities, including their litigation activities, 
        despite the broad practice of law exclusion in section 1027(e) 
        of the Consumer Financial Protection Act. The Bureau's 
        aggressive actions could also lead to other Federal agencies 
        adopting rules or practices regulating attorneys' litigation 
        activities in other types of court cases.
            (9) These developments have undermined State and Federal 
        courts' primary and inherent authority to regulate and oversee 
        attorneys engaged in the practice of law by creating multiple 
        conflicting sets of rules and standards for attorneys, 
        resulting in unfair lawsuits against attorneys pursuing valid 
        legal claims for clients in court, increased attorney 
        malpractice insurance rates, difficulty in obtaining legal 
        representation, and reduced access to justice.
            (10) On January 26, 2011, the Conference of Chief Justices 
        adopted Resolution 1 (``In Support of Preserving Traditional 
        State Court Regulation of Lawyers and Opposing Expanded Federal 
        Agency Regulation of Lawyers and the Practice of Law''), 
        affirming that primary regulation and oversight of attorneys 
        and the legal profession should continue to be vested in the 
        State courts, not Federal agencies or Congress, and that the 
        courts are in the best position to fulfill that important 
        function. The Resolution also expressed support for Congress 
        and Federal agencies' decisions to include broad practice of 
        law exclusions in certain Federal statutes and agency rules, 
        and opposition to Federal legislation or rules intended to 
        establish or expand the Federal regulatory jurisdiction of 
        attorneys engaged in the practice of law.
            (11) While the activities constituting the practice of law 
        are determined by the State in which an attorney is licensed or 
        admitted to practice, litigation activities in connection with 
        a legal action in State or Federal court are considered to be 
        part of the practice of law in every State.
            (12) To protect and restore State and Federal courts' 
        primary and inherent authority to regulate and oversee 
        attorneys and the legal profession, Federal legislation is 
        needed to clarify that--
                    (A) attorneys engaged in litigation should be 
                regulated and disciplined exclusively by State supreme 
                courts, their attorney disciplinary agencies, and other 
                State and Federal courts of competent jurisdiction;
                    (B) Federal agencies shall have no regulatory 
                authority over litigation activities of attorneys; and
                    (C) no party in a legal action shall have a Federal 
                private right of action against the opposing attorney 
                for the attorney's litigation activities.
            (13) On February 5, 2020, the Conference of Chief Justices 
        also adopted a second Resolution 1, entitled ``In Support of 
        Preserving the Courts' Authority to Regulate and Oversee 
        Lawyers Engaged in Litigation and Opposing Federal Agency 
        Regulation of Lawyers' Litigation Activities'', which expressed 
        support for Federal legislation that would implement the three 
        proposed reforms described in paragraph (12).
    (b) Sense of Congress.--It is the sense of Congress that attorneys 
engaged in litigation activities should be regulated and disciplined 
exclusively by the courts and other authorities of the State in which 
the attorney is licensed or admitted to practice, attorney disciplinary 
agencies overseen by those courts, and other State and Federal courts 
of competent jurisdiction pursuant to the applicable statutes, rules of 
civil procedure, and rules of professional conduct and disciplinary 
procedure duly adopted in those jurisdictions.

SEC. 3. COURT AUTHORITY OVER ATTORNEYS ENGAGED IN LITIGATION 
              ACTIVITIES.

    (a) In General.--Chapter 99 of title 28, United States Code, is 
amended by inserting after section 1631 the following:
``Sec. 1632. Preservation of State and Federal courts' primary and 
              inherent authority to regulate and oversee attorneys 
              engaged in litigation activities
    ``(a) Definitions.--In this section:
            ``(1) Federal agency.--The term `Federal agency' means an 
        agency as defined in section 551(1) of title 5.
            ``(2) Litigation activities.--The term `litigation 
        activities' means any actions by a licensed attorney or a law 
        firm in connection with a legal action in a court of law on 
        behalf of a client, including--
                    ``(A) serving, filing, or conveying formal legal 
                pleadings, discovery requests, or other documents 
                pursuant to the applicable statute or rules of civil 
                procedure;
                    ``(B) communicating in, or at the direction of, a 
                court of law (including in depositions or settlement 
                conferences) or in the enforcement of a judgment; and
                    ``(C) any other activities engaged in as part of 
                the practice of law, under the laws of a State in which 
                the attorney is licensed or admitted to practice, that 
                relate to the legal action.
            ``(3) State.--The term `State' means the 50 States, the 
        District of Columbia, the Commonwealth of Puerto Rico, the 
        Commonwealth of the Northern Mariana Islands, American Samoa, 
        Guam, and the United States Virgin Islands.
    ``(b) Limitation on Federal Agency Authority.--Notwithstanding any 
other provision of law, a Federal agency does not have any supervisory, 
enforcement, or regulatory authority over litigation activities of 
attorneys or law firms.
    ``(c) No Private Right of Action.--Notwithstanding any other 
provision of law, a person may not bring a civil action in a court of 
the United States seeking relief for harm arising out of alleged 
misconduct related to the litigation activities of an opposing attorney 
or law firm.''.
    (b) Clerical Amendment.--The table of sections for chapter 99 of 
title 28, United States Code, is amended by inserting after the item 
related to section 1631 the following:

``1632. Preservation of State and Federal courts' primary and inherent 
                            authority to regulate and oversee attorneys 
                            engaged in litigation activities.''.

SEC. 4. CONFORMING AMENDMENTS.

    (a) Fair Debt Collection Practices Act.--Section 803(6) of the Fair 
Debt Collection Practices Act (15 U.S.C. 1692a(6)) is amended--
            (1) by redesignating subparagraph (F) as subparagraph (G); 
        and
            (2) by inserting after subparagraph (E) the following:
                    ``(F) any licensed attorney or any law firm, to the 
                extent that such attorney or firm is engaged in 
                litigation activities (as such term is defined in 
                section 1632 of title 28, United States Code) to 
                collect a debt on behalf of a client; and''.
    (b) Consumer Financial Protection Act of 2010.--Section 1027(e) of 
the Consumer Financial Protection Act of 2010 (12 U.S.C. 5517(e)) is 
amended--
            (1) by redesignating paragraph (3) as paragraph (4); and
            (2) by inserting after paragraph (2) the following:
            ``(3) Rule of construction limitation with respect to debt 
        collection.--Paragraph (2) shall not apply to a licensed 
        attorney engaging in litigation activities to collect a debt on 
        behalf of a client if the attorney is excluded from the term 
        `debt collector' under section 803 of the Fair Debt Collection 
        Practices Act by reason of section 803(6)(F) of such Act.''.
                                 <all>