D.C. Circuit Rejects FTC Conclusion That Attorneys Are Subject to the GLBA Privacy Provisions

December 6, 2005

The D.C. Circuit Court released an opinion this morning, affirming the lower court's grant of summary judgment in favor of the American and New York State Bar Associations in their challenge to the FTC's conclusion that attorneys engaged in real estate settlements (and in other activities found by the Federal Reserve Board to be permissible for bank holding companies, such as preparation of tax returns) are "financial institutions" subject to the GLBA privacy requirements.

This is a resounding victory for the bar in a case where the FTC sought deference under Chevron for its conclusion. The Court concluded that, in light of the history of state regulation of the practice of law, there was no evidence that Congress had intended to subject the practice of law to federal regulation under GLBA and, in any event, the FTC's interpretation of GLBA as covering attorneys was unreasonable.