The Rules of Professional Conduct and C.G.S. § 1-2z
By Attorneys Wesley W. Horton and Brendon P. Levesque
July 12, 2021
In its wisdom the Connecticut legislature in § 1-2z decreed that if a statute is unambiguous (and not absurd) the courts stop there and do not look at secondary sources, such as legislative history. Too bad if that history discloses a latent ambiguity, i.e., one that was not apparent from the text of the statute.
The legislature, however, has no say about the Rules of Professional Conduct, so the judges can make their own procedures about how they are to be construed.
As it happens, the official commentaries to the rules are also adopted by the judges, so the question arises: Are they like legislative history, relevant only if the statute is ambiguous? In Cohen v. Statewide Grievance Committee, the Supreme Court in a decision released on July 2, 2021, answered the question “sort of no.”
Cohen does state unambiguously that § 1-2z is not applicable, meaning that courts, if they wish, can in all cases examine the official commentaries to determine the meaning of the rules. But then Cohen gets ambiguous. It says that the commentaries are not intended to be definitive, but rather only illustrative of the meaning of the rules. What does that mean? The whole idea of § 1-2z is to prevent the use of legislative history unless the statute is ambiguous. So if Cohen says that § 1-2z does not apply to the commentaries, then they must be usable even if the rule is unambiguous. But if the commentaries are only illustrative, then they cannot alter the meaning of an unambiguous rule. And if they cannot do that, then they are useless if the rule is unambiguous. In short, Cohen makes the commentaries little different from legislative history.
Our opinion is that, because the judges adopted the commentaries, they are not only more persuasive than legislative history, but they also should be able to alter the meaning of an apparently unambiguous rule by exposing a latent ambiguity. There was none in Cohen, but if one arises in a future case the Supreme Court should reconsider its dicta in Cohen.
The logical next question, not addressed by Cohen, is: If both the rule and the commentaries are ambiguous, can one nevertheless examine any judicial history on their adoption to look for latent ambiguity? Such history may not be as persuasive as judicially adopted commentaries, but, if § 1-2z is not applicable, the answer logically should be yes.