Mandatory state bars long ago lost their ability to surprise. Just when you think tin-eared insularity reaches its limits — wait two beats — there’s always more.
Last month, for example, in his President’s Message: Task Force to Tackle Unauthorized Practice of Law, the Nevada State Bar President after first announcing a new bar task force to study the U.S. Supreme Court’s 6-3 decision against state-sponsored protectionism in North Carolina Board of Dental Examiners v. Federal Trade Commission, then surprisingly segued into a clarion call for more ways “to protect the public interest” from the unauthorized practice of law. Methinks he reached the wrong conclusion.
As a matter of fact, the North Carolina Dental Board case runs counter to self-regulated active market participants fostering anti-competitive regulations and actions for their own — not the public’s benefit. Writing for the majority, Justice Anthony Kennedy explained “Active market participants cannot be allowed to regulate their own markets free from antitrust accountability. When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. If a state wants to rely on active market participants as regulators, it must provide active supervision.”
No wonder those who aren’t state bar presidents are reading the case as “a blow for consumers and economic freedom.” Others even opine it may “drill down into bar associations’ [anti-trust] immunity.”
But no worries apparently in Nevada. In fact, some mandatory bars are acting as though the ruling has no impact since mandatory bar governing boards are either under the “active supervision” of state supreme courts or because lawyer regulation comes under the state supreme court or because bars don’t define what constitutes the practice of law (UPL).
In Arizona, where what constitutes the practice of law has been progressively diluted first, by court-certified legal document preparers exempted from UPL by supreme court rule and soon by the rumored introduction of Washington State-styled Limited License Legal Technicians, I predict the besainted Arizona Bar will declare itself anti-competitively pure.
But at least one mandatory state bar association has decided to pay half attention to what happened to North Carolina’s dentists. The State Bar of Washington announced last week it was suspending some ethics opinions because of antitrust concerns.
Bright line test.
Outside the insular world of bar associations, public interest and consumer groups are also weighing in. In a letter to California’s Attorney General earlier this year, consumer interest representatives asked for an inquiry of all state regulatory bodies in California.
Calling the North Carolina decision a “bright-line minimum test,” the public interest groups wrote, “Those controlling the decisions that might restrain trade may not be “active market participants” in the trade regulated. For every agency so afflicted, the legal status of those making such decisions is clear – they are, in the words of the Court, “nonsovereign actors” who lack any state sovereign immunity whatever. Their decisions are no different than a decision undertaken by a cartel or private combination of competitors. You are invited to review the decision en toto and draw your own conclusions, or to refer it and this letter to the leading antitrust prosecutors and experts in your jurisdiction.”
Concerning lawyers and state bar associations, in a footnote the correspondents declared, “By way of illustration: State bars controlled by attorneys rarely discipline for excessive billing or intellectual dishonesty. Few require any demonstration whatever of competence in the actual practice area of law relied upon by clients. Few require malpractice insurance, or in any way ameliorate the harm from attorney incompetence.
“The point is, each of the many agencies within your state is empowered to carve out momentous exceptions from federal antitrust law, and those decisions in particular require a level of independence from the implicit focus of current practitioners.”
The woes of the amici.
Before the decision, some mandatory state bars had signed onto the North Carolina Bar’s amicus brief asking the Supreme Court to overturn the Fourth Circuit. They’d claimed that upholding the Fourth Circuit would interfere with the state sovereign’s ability to regulate state-licensed professionals and state public protection laws. See “SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless.”
They cited 4 likely gloom and doom impairments:
“(1) The limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.
(2) State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.
(3) Lawyers will be reluctant to serve as bar councilors for fear of being sued—and of being held individually liable—in treble damage antitrust actions.
(4) Councilors who do agree to serve may be deterred from fulfilling their state authorized enforcement duties against defendants who threaten antitrust claims.”
Ironically, given the subsequent underwhelmed attitudes of some state bars in the case’s aftermath, the woes of the amici may have been overwrought pretense or much ado about nada. Perhaps the Justices were right to pay no mind.
Such little reaction despite all those supposed impairments. It appears the sky was never going to fall.
Or I’m wrong after all. No clue may be better than half-a-clue.
Photo Credits: “No Tolerance” by Jimmy Changa, Icky Pic, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; Other photos via Morguefile.com, no attribution required.