The Gramm-Leach-Bliley Act of 1999 requires all future banking regulations to be written in "plain language." Like saving Social Security or improving education, it's an idea that seems eminently sensible.
But that doesn't mean regulatory lawyers have to like it.
Groans and much eye-rolling met the subject last week during a meeting of the Federal Bar Association's banking law committee. Office of Thrift Supervision Deputy Chief Counsel John Bowman was explaining how his agency was translating a particularly complex regulatory provision into plain language when laughter burst from the head table.
Bemused, Mr. Bowman turned to identify the culprit and his eyes fell on Julie L. Williams, chief counsel for the Office of the Comptroller of the Currency. Ms. Williams smiled and shook her head sympathetically. "Can't be done," she said, to a chorus of chuckles from the audience.
Of course, it can be done - but for the lawyers involved, it's a royal pain.
"It's going to cause some headaches" for some of the agencies' veterans, said John F. Cooney, a lawyer with Venable, Baetjer & Howard in Washington. "We used to craft rules that got the job done - rules that struck the proper political or policy balance. Sometimes we had to go through some verbal gymnastics to get there.
The OTS has a head start on the banking agencies, having required since 1996 that its lawyers draft rules in plain language.
"It forces us to deal with what we mean, rather than relying on that ambiguity as something to hide behind," said OTS Deputy Chief Counsel Deborah Dakin, who has led the agency's plain-language push.
"Sometimes I wish I had that ambiguity back," she added.
Training colleagues to write in plain language has been as much about adjusting the structure of the agency's rules as about avoiding complicated legal terms, Ms. Dakin said.
For instance, in the past the tendency was "to hang subsections on [regulations] like ornaments on a Christmas tree." This created citations with a jumble of Roman numerals, uppercase and lowercase letters, numbers, and symbols.
Instead of explaining a complex idea in "one excruciatingly long section," lawyers are encouraged to break it up into more-digestible chunks. Some rules, the OTS has found, are best expressed in a question-and-answer format that leads institutions through specific requirements in chronological order.
Other agencies have begun to follow the OTS' lead. The Comptroller's Office has reviewed its rules to make them more understandable, and the Federal Deposit Insurance Corp. is sending many of its more than 30 rule-writing attorneys to plain-language classes.
"This is a good direction to be going in," said Pamela A. Shea, FDIC associate general counsel. "If it makes it easier for people to understand what is required, how can that be a bad thing?"
For some longtime Washington lawyers, though, the jury is most definitely still out.
"This is very difficult, because as much as people hate legal-speak, legal language is precise, and plain English often is not," said David Roderer, a lawyer with Goodwin, Procter & Hoar. "There is a tendency to think plain means simple, rather than precise."
He acknowledged, however, that well-written plain-language rules can be effective.
"Actually, much of what the OTS has put out is very readable and understandable - you don't need a lawyer to figure it out," Mr. Roderer says. "What a scary thought that is."