ANALYSIS: In-House, Outside Counsel Disagree on Loper’s Impact

In-house counsel are more likely than law firm attorneys to foresee a shake-up to their practices if the US Supreme Court overrules or changes Chevron, according to a new Bloomberg Law survey. Across all legal professionals surveyed, regulatory-heavy practice groups are, understandably, the most wary.

Of the 326 respondents to the question about how a change to Chevron would alter their practices, 228 work at law firms and 98 are in-house.

A bigger percentage of in-house attorneys than law firm lawyers anticipate Chevron-related changes, and this holds true for all types of change: significant (20% to 14%), moderate (24% to 19%), and slight (36% to 28%). Law firm lawyers were almost twice as likely (39%) as in-house counsel (19%) to predict no change at all to their practice.

While somewhat surprising, the overall greater concern from in-house counsel may be due to the fact that regulatory matters generally fall first on inside counsel’s shoulders, so they may predict a more immediate effect if the high court changes agency deference.

Looking at the 10 practice areas with the greatest number of survey responses, more than half of the respondents for each group think that there will be some change to their work in the wake of rulings in Loper Bright and Relentless—whether that change is significant, moderate, or slight.

Lawyers in practice areas with a high level of interaction with regulations—like compliance, labor & employment, and privacy & data security—were unsurprisingly some of the most wary.

There were some unexpected results, though. Banking & finance and mergers & acquisitions practitioners might be facing significant bumps in the road if regulatory deference changes, but they reported the same level of anticipated change as the more state-law-based commercial contracts professionals.

The framework for how courts review federal agency actions doesn’t touch every single area of legal practice. But it’s clear that many, if not most, legal practitioners will be affected by what the Supreme Court decides in Loper Bright and Relentless.

Bloomberg Law subscribers can find related content on our new In Focus: Chevron, Loper & Agency Deference page, our new Practical Guidance on the Chevron Doctrine, and our new Practical Guidance on Judicial Standards for Agency Review.

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