State Ex Rel. Doyle v. Frederick J. Hanna & Associates, P.C.

CARLEY, Presiding Justice.

Joseph B. Doyle is the Administrator of the Fair Business Practices Act of 1975 (FBPA), OCGA § 10-1-390 et seq., which he enforces through the Governor’s Office of Consumer Affairs (OCA). After receiving complaints alleging abusive debt collection practices, the Administrator issued an investigative demand to Frederick J. Hanna & Associates, EC. (Appellee), which is a law firm that seeks to *290collect debts on behalf of creditors.

When Appellee refused to comply with the demand, Appellant State of Georgia ex rel. Doyle filed an application for an order compelling compliance therewith. The trial court denied the application, concluding that, because Appellee’s day-to-day operation directly involves the practice of law, and because the investigative demand directly impacts Appellee’s practice of law, that demand is an attempt by Appellant and the OCA to regulate the practice of law and constitutes an impermissible interference by the executive branch into the exclusive jurisdiction of this Court in violation of the separation of powers doctrine. Appellant appeals from this order.

1. Appellant contends that it was unnecessary for the trial court to reach the merits of Appellee’s arguments that Appellant was not authorized to regulate the practice of law. Citing cases such as Securities and Exchange Comm. v. Brigadoon Scotch Distrib. Co., 480 F2d 1047, 1052-1053 (II) (2nd Cir. 1973) and BankWest v. Oxendine, 266 Ga. App. 771, 774 (1) (598 SE2d 343) (2004) (citing Brigadoon), Appellant argues that an agency’s investigative authority is broader than its enforcement authority and that it may investigate simply to determine whether certain activities come within its regulatory authority.

However, the FBPA specifically provides that any person to whom an investigative demand or subpoena is issued may object to it “on grounds that it fails to comply with [the FBPA] or upon any constitutional or other legal right or privilege of such person.” OCGA § 10-1-404 (b). Therefore, “the kind of [investigative] authority that existed in the cases cited by [Appellant] is lacking, and thus the policy against interfering with administrative investigations must give way.” Federal Trade Comm. v. Miller, 549 F2d 452, 462 (III) (7th Cir. 1977) (distinguishing Brigadoon). Accordingly, the distinction drawn by the dissent (p. 298) between investigation under the FBPA and the availability of its remedies is not viable under Georgia law, and we now turn to the merits.

2. Some state courts have interpreted consumer protection statutes “as providing an exemption for conduct within the actual practice of law or medicine, but not for commercial or entrepreneurial activities of a physician or an attorney.” Lori J. Parker, Proof of a Claim Involving Alleged Violation of State Consumer Protection or Similar Statute Against Physician or Attorney, 79 AmJur Proof of Facts 3d 199, § 1 (2004). See also Mary Dee Pridgen, Consumer Protection and the Law § 4:36. In 2005, we joined those courts with respect to the practice of medicine, concluding

that their reasoning is equally applicable to claims under the Georgia FBPA. ... “[T]he touchstone for a legally *291sufficient (FBPA) claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. ...” [Cit.]

Henderson v. Gandy, 280 Ga. 95, 98 (623 SE2d 465) (2005). Like comparable statutes in other jurisdictions, the FBPA

contains no language expressly excluding or including the legal profession within its ambit. Despite the absence of such language, there appears to be little dispute among the decisions addressing this issue that consumer protection statutes do not apply to claims arising out of the “actual practice of law.”

Cripe v. Letter, 703 NE2d 100, 105 (Ill. 1998). See also Beyers v. Richmond, 937 A2d 1082, 1086 (a) (Pa. 2007).

The foreign case on which Appellant most heavily relies is Heslin v. Conn. Law Clinic of Trantolo and Trantolo, 461 A2d 938 (Conn. 1983). However, that case was subsequently distinguished by Haynes v. Yale-New Haven Hosp., 699 A2d 964, 973 (II) (Conn. 1997). Haynes is the very case on which we primarily relied and the rationale of which we expressly adopted in Henderson v. Gandy, supra at 97, 98. In accordance therewith, we hold that,

[although physicians and other health care providers are subject to [the FBPA], only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by [the FBPA]. . . . “[I]t is important not to ‘interfere with the attorney’s primary duty of robust representation of the interests of his or her client.’ [Cit.] . . . The noncommercial aspects of lawyering — that is, the representation of the client in a legal capacity — should be excluded for public policy reasons. [Cit.]” [Cit.]

Haynes v. Yale-New Haven Hosp., supra at 972-973 (II).

Moreover, “ ‘no statute is controlling as to the civil regulation of the practice of law in this state. Only this Court has the inherent power to govern the practice of law in Georgia.’ ” GRECAA v. Omni Title Services, 277 Ga. 312, 313 (2) (588 SE2d 709) (2003). In the exercise of that power, we administer the Rules of Professional *292Conduct, which constitute

a comprehensive regulatory scheme governing attorney conduct. . . . [The FBPA does] not . . . specify that it intended the Act’s provisions to apply to the conduct of attorneys in relation to their clients. Given this [C]ourt’s role in that arena, we find that, had the legislature intended the Act to apply in this manner, it would have stated that intention with specificity. [Cit.] Absent a clear indication by the legislature, we will not conclude that the legislature intended to regulate attorney-client relationships through the [FBPA],

Cripe v. Leiter, supra at 105-106. Compare OCGA § 10-1-427 (explicitly regulating the false advertising of legal services).

3. The Court of Appeals has held that the FBPA is applicable to the collection of a debt by a collection agency. 1st Nationwide Collection Agency v. Werner, 288 Ga. App. 457, 458 (1) (654 SE2d 428) (2007). However, the trial court was authorized to find that Appellee is a law firm whose day-to-day operations require licensed, practicing attorneys. The issue in this case is not whether the FBPA applies to a law firm’s own commercial or entrepreneurial activity when, for example, it attempts to collect fees from a client. Instead, this case involves Appellee’s

attempt[s] to collect moneys that were owed to [its] clients. In doing so [it was] rendering a professional service that is often carried out by law firms or attorneys. . . . [Indeed,] [d]ebt collection ... is a necessary part of the practice of debtor-creditor law. Because [Appellee was] engaged in that very practice here, [it was] rendering a professional legal service. Accordingly, [its] acts fall within the learned profession exemption.

Reid v. Ayers, 531 SE2d 231, 235-236 (N.C. App. 2000) (although the consumer protection statute there contained a learned profession exemption in general terms, the court noted, consistent with Henderson and other jurisdictions, that the exemption would not apply to entrepreneurial aspects of legal practice, citing a case relied on by Cripe from a jurisdiction without any express exemption for learned professionals). The nature of such representation of clients in a legal capacity is not destroyed by the utilization of “ ‘staffing, training, equipment or support personnel.’ ” Henderson v. Gandy, supra at 98. Indeed, the manner in which such support is used and managed in the representation of clients is part of the actual practice of law and, *293therefore, does not involve the entrepreneurial or commercial aspects of professional practice within the contemplation of the FBPA. See Henderson v. Gandy, supra at 99.

Accordingly, we hold that the representation of clients by a law firm does not come within the FBPA even if certain services were provided by non-lawyers within the firm and could have been offered by a company without any attorneys. If Appellee’s employees engaged in wrongful conduct against debtors, the remedy must be found outside the FBPA. See Heintz v. Jenkins, 514 U. S. 291 (115 SC 1489, 131 LE2d 395) (1995) (federal Fair Debt Collection Practices Act (FDCPA) applies even to lawyers regularly engaged in collecting consumer debt through litigation); Rules of Professional Conduct 5.3 (responsibilities regarding non-lawyer assistants), 5.7 (responsibilities regarding law-related services). Like the dissent, we recognize that the debt collection practices of attorneys “would be subject to investigation by the Federal Trade Commission, the regulatory entity responsible for enforcement of the FDCPA. [Cit.]” (Dissent, p. 300) As a result, the State Bar is not the sole entity authorized to investigate a lawyer for engaging in unfair debt collection practices.

Contrary to the dissent, OCGA § 10-1-391 (b) does not constitute a “legislative mandate” for consistent interpretation of the FBPA and the Federal Trade Commission Act (FTCA) such that an attorney who violates the FTCA has also violated the FBPA. Consistent construction of these federal and state laws must take into account the differences between the statutory schemes. Agnew v. Great Atlantic & Pacific Tea Co., 232 Ga. App. 708, 711 (2) (502 SE2d 735) (1998) (causation and injury are required elements under the FBPA, but not under the FTCA). The application of the FTCA to attorneys collecting consumer debt is by way of the FDCPA, a separate act which expressly addresses debt collection and applies to attorneys only because of the repeal of a prior exemption for them. Heintz v. Jenkins, supra at 294-295. Moreover, Congress obviously acts in a different governmental context than does the General Assembly. As already noted, if this state’s legislature had intended to regulate the conduct of attorneys in relation to their clients notwithstanding this Court’s unique role with respect thereto, one would expect to find a clear and specific provision like the regulation of false advertising of legal services in OCGA § 10-1-427. Cripe v. Leiter, supra.

4. We need not address whether application of the FBPA to the practice of law would violate the constitutional separation of powers doctrine. See Board of Tax Assessors of Columbus v. Tom’s Foods, 264 Ga. 309, 310 (444 SE2d 771) (1994).

Judgment affirmed.

All the Justices concur, except Hines, Melton, and Nahmias, JJ, who dissent.