In June 2019, a few months after I joined the agency, one of my Department of Financial Institutions colleagues stopped by to report good news. The Great Danes were going to be just fine.
It was a relief. For weeks, he’d been writing and calling a canine rescue organization that was late with its required state filings. We couldn’t let it remain delinquent – the law’s the law – but we also knew what might happen if the organization was forced to shut down.
So, step by step, my colleague coached the organization’s new staff back into compliance with the law. They’d now completed the last missing requirement, regained compliance, and ensured they could continue their mission. My colleague couldn’t help but smile in relief, and I couldn’t help but join him.
Not What I Expected
I don’t know what I expected government regulators to be like, but this wasn’t it.
In 12 years of private-practice litigation before taking this role, I’d often imagined them the way they’re portrayed in court decisions – as either an army of highbrow professors, on the one hand, or a legion of “bureaucratic overlords” spawned from “the governing class’s sneering contempt for the people who elect its members,”1 on the other. Neither image made me eager to contact a regulator with a potentially dumb question.
Having viewed things from the other side, that fear now seems absurd. Regulators want you to reach out. They want you to get it right. Prompt communications on regulatory issues prevent bigger headaches down the road, and wise practitioners don’t hesitate to make them.
But regulators are a different breed from many in the legal field, and conversations with a regulator may feel uncomfortably foreign to lawyers accustomed to a steady diet of tense communications with opposing counsel or courts.
Here are a few rules to help your conversations go smoothly:
Relax … your regulator isn’t your adversary. Civil practice sometimes feels like zero-sum strategy game, with only one safe assumption: your opponents are trying to benefit themselves at your client’s expense. Lawyers conditioned in that environment assume sinister motives behind every seemingly innocuous question or offer, and often they’re right.
Bring that skepticism into a meeting with regulators, however, and you’ll get some funny looks. Regulators don’t care about besting you or your clients. They care that the law is followed – and if your client has violated it, they care that the problem is resolved and any harm to the public rectified.
That’s about it, and it’s more than enough to keep them busy. State regulators don’t have the time or resources to serve hidden agendas in enforcement actions, and they get no bonuses for slipping something past you. To the contrary, they know that any misunderstandings by you or your client are only going to cause them more work for them later.
So put down the sword and shield, lean back in your chair, and relax. Your regulator has no reason to trick you, and every reason to help you and your client do things right.
Ask the dumb questions, but ask them with clarity. Lawyers are paid to be smart, and thus tend to fear looking incompetent. That’s probably a healthy instinct to have when preparing to appear before a jury or an annual shareholder meeting.
But it serves no purpose in front of regulators. They know as well as anyone that administrative law is complicated, with scraps of different governing provisions sprawled across statutory chapters, administrative rules, opinion letters, and precedent.
They won’t judge you for feeling lost or unsure.
But, you can clarify your questions and avoid misunderstandings by doing a little homework first. Most state agency websites include a treasure trove of helpful resources, including links to relevant statutes and rules, orders, FAQs, forms, licensee databases, and agency structural charts.
Take 15 minutes to survey the agency site. You may not learn the answer to your specific question, but you’ll pick up insight on how to ask it, or other nuggets of helpful compliance information to pass along to your client.
Once you’ve determined who and what you want to ask, get in touch. Agency websites typically provide many alternative ways of contacting them. Whichever method you choose, don’t assume the recipient is steeped in the details of your issue or client. Give an overview, tell them what you’re trying to do, be patient, and ask follow-ups to confirm you’re on the same page.
Be clear and cordial. If they don’t know the answer to your question, ask for suggestions on who to contact next.
Remember, they want to help you. You may as well do what you can to assist them in doing that job well.
Understand our limits. Popular TV and movies can portray regulators as wielders of immense government power, with access to super-secret databases, all the human and technological resources they need, and an implied understanding that it’s OK to break the rules now and then.
That all sounds thrilling, but it’s not a life that any state government regulator would recognize. Their days are a fight to keep up with their duties, and to catch smaller problems before they snowball into bigger messes.
They aren’t permitted to stretch the law. Most regulatory agencies are creatures of statutes, confined by their terms. Sometimes those statutes give regulators the discretion to make exceptions in special cases; often they do not. Regulators can tell you what the law says, or at least point you in the right direction, but they can’t give you legal advice.
Finally, if you think a statute ought to be changed, a regulatory agency is probably the wrong place to make your case. People at the agency might personally agree with you, but they didn’t enact the statute, and they don’t have the power to change it.
They can only try to ensure that it’s followed – and strive to create those brief moments when a problem is resolved, the public is protected, and they can’t help but smile in relief.
This article was originally published on the State Bar of Wisconsin’s Business Law Blog. Visit the State Bar sections or the Business Law Section web pages to learn more about the benefits of section membership.
1 Koschkee v. Taylor, 2019 WI 76, ¶¶ 42, 44, --- Wis. 2d ---, 929 N.W.2d 600 (R. Bradley, J., concurring) (June 25, 2019).