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Posts Tagged ‘Arizona Bar’

https://cdn.morguefile.com/imageData/public/files/b/BonnieHenderson/01/l/1451713664si0nf.jpgThis week signals the official start of summer, which also means — it’s state bar convention time! The annual silly season has begun.

In addition to being the last continuing legal education money grab for state bars before the fiscal year ends, it’s also the annual “orgy of self-adulation”like the Oscars for bar insiders and connected elites.

Lawyers you never heard of — chosen by who-knows-who — will get awards only recipients will care about.

And oh, yeah incoming bar leaders will fatuously speechify after being pompously sworn in.

The Texas, South Dakota and Wisconsin Bar Annual Conventions started this week. Next week Arizona holds its 2018 State Bar of Arizona Annual Convention.

Termed its “flagship event,” Arizona conventioneers can anticipate at least a partial antidote to the rest of the Butt-Numb-A-Thon with a Thursday Party and the State Bar’s “Lawyers Got Talent” Contest.” And the jokes almost write themselves — a lawyer amateur talent show.

Anyhow, if there’s a dance competition, I hope these guys show up. They’re among Arizona’s cheekiest, ineradicable personal injury advertisers. Ka-ching! — they even bought a full-page color ad in the convention brochure. And with dance steps like these, how can they miss?

The Naked Truth.

In truth, the silliness started months ago. In March, the Utah State Bar inadvertently emailed a photo of a topless woman to every lawyer in the state to herald its upcoming Spring Bar Convention.

ABA Journal recounted, “The message, sent to all active Utah lawyers, was intended to promote the bar’s spring convention, reported the Salt Lake Tribune, the Deseret News and Above the Law, which posted the email and the nude photo (not safe for work) here. The email also included photos of a clothed Lady Justice statue and a rock formation.”

Embarrassed bar officials tweeted “Apologies to all who received an inappropriate email from the Utah State Bar. We are aware of the situation and are investigating the matter.”

And underscoring how you can’t make this stuff up, the Utah Spring Bar Convention kickoff reception also featured, “the 16th Annual “Secret Lives of Lawyers” Silent Auction.” See “Utah State Bar sends every local lawyer an email of a topless woman.”

Parenthetically, the Utah Bar holds not just one yearly convention — but two. The Summer Convention is July 25-28 in St. George — undoubtedly with new safeguards to prevent another bare-chested recurrence.

‘How do I love me . . . let me count the ways.’

Generally speaking, bar conventions are not well attended. Well under 10% of the bar’s lawyers, for example, annually attend in Arizona and even fewer in Nevada. This is unlikely to improve, especially for Nevada, which continues to price itself out of reach of many members by holding conventions in expensive venues.

Last year’s convention was in Austin and the year before it was Hawaii. This year’s paean to self-congratulation is next month at Chicago’s iconic Drake Hotel. Registration for the Nevada Bar Convention comes in at a hefty $590 per registrant — likely the most expensive registration of any bar annual meeting this year.

Those paying the hefty fee on top of airfare and hotel expenses can at least look to their inclusion at the President’s Dinner. According to the convention brochure, “This semi-formal (black tie optional) event celebrates the recipients of the 2018 State Bar of Nevada’s Membership Awards and incoming bar President Rick Pocker, who will become the state bar’s 90th president. In addition to a plated meal, guests will be able to enjoy entertainment and dancing, as well as a red-carpet style photographed entrance.”

Not to be outdone, though, the Arizona Bar will similarly fete its incoming president and dole out member awards only the recipients care about. And why not? Patting yourself on the back is part and parcel of these annual meetings.

With a hat tip to my buddy, The Legal Watchdog, Wisconsin’s 2018 Annual Meeting & Conference starts June 21st and apparently still scrounging for attendees, bar cheeseheads mistakenly curtailed the registration deadline before extending it to the penultimate day.

And in a rather ironic programming twist, one of the plenary speakers is P.J. O’Rourke, “author, humorist, and political satirist.” I hope he includes some of his most quotable observations about hubris — “one of the great renewable resources” as well as his pointed observations on bureaucracy, greed, and power — in other words all the traits of a compulsory membership bar association.

I suspect, however, there may be limits to the silliness in Lake Geneva, WI. O’Rourke will probably leave out his lawyer jokes such as this chestnut: “During the mid-1980s dairy farmers decided there was too much cheap milk at the supermarket. So the government bought and slaughtered 1.6 million dairy cows. How come the government never does anything like this with lawyers?”

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Credits: silly, bonnie henderson at morguefile.com; Thank You Gif via Tenor; Blog OMG! by Mike Licht at Flickr Creative Commons attribution; Shocking!!! “that guy isn’t wearing pants,” by Chuck Olson, Flickr Creative Commons attribution license.

 

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Rod Serling - Twilight Zone Button | by TobyotterMay 11th is Twilight Zone Day, an unofficial holiday that celebrates The Twilight Zone, that iconic 1960’s era television anthology replete with unexpected twists, surprise endings and of course, the bizarre. What an appropriate day then to comment on a blast email from the president of the State Bar of Arizona.

It was an “update” received a few days ago following the defeat of HB 2221. This was the bill that having passed the Arizona House and legislative committees in both houses, came within 5 votes in the Arizona Senate of getting to the governor’s desk. The legislation failed to pass the Senate on May 5, 2016. Bar reformers vow to continue the fight next legislative session.

As for the bar president’s email, too bad it again mischaracterized HB 2221 as “the bill that would have created a two-tiered membership within the State Bar of Arizona.” Two-tiers? To practice law in Arizona, there’s only one tier. It’s called mandatory membership in the Arizona Bar, which would have singularly remained the requisite precondition to practice law in the state.

In truth, HB 2221 would have helped protect the constitutional rights of Arizona lawyers. And it would have increased transparency by subjecting the Bar to Arizona Public Records Lawlike all other state regulatory bodies.

The principal reason the State Bar opposed the bill was because HB 2221 would have forbidden it from using mandatory dues for anything other than lawyer regulation. Bar leadership didn’t want to lose access and control over both regulatory and non-regulatory mandatory assessments paid by Arizona’s lawyers.

laughing seinfeld evil newman laughThe other reason the Bar disliked the bill was because as the bar president’s email intimated, it didn’t see the need for greater public transparency. The Bar has long been a tone-deaf master of self-congratulation and self-delusion. Hardly a surprise then that the bar president declared, “our organization has worked to be exceptionally transparent.” This from the same organization that fails to provide detailed budget expense information to its members and that attempted to pass a stealth dues increase 12 days before Christmas 2013. It’s also the same organization that tried to disband member sections and impose a CLE precertification revenue enhancer both while it thought no one was paying attention. More recently, it’s also the organization that uses mandatory assessments to lobby against the interests of its members. And good luck getting a number on the extent and total dollar expenditure both internally in executive compensation and externally in outside lobbyist fees.

But as risibly self-delusional as that “exceptionally transparent” declaration was, the email also offered a sop to lawyers believing otherwise, i.e., that the Bar is not only non-transparent but secretive. The bar president pointed out that “a proposed Supreme Court rule would subject the Bar to open records and open meeting requirements.”

That ‘solution,’ however, leaves a lot unanswered. It may also prove less than satisfactory. Rather than submit to Arizona A.R.S. § 39-121, the Bar prefers to fall under Arizona Supreme Court Rule 123(a), which provides: “Pursuant to the administrative powers vested in the Supreme Court by Article VI, Section 3, of the Arizona Constitution, and the court’s inherent power to administer and supervise court operations, this rule [is] adopted to govern public access to the records of all courts and administrative offices of the judicial department of the State of Arizona.”

Well and good except that even though the Court falls under the statutorily defined plain meaning of “public body,” it has previously ruled for itself that “Rule 123 — not the Arizona Public Records Law — controls requests for judicial records.” See London v. Broderick and Arpaio v. Davis.

Furthermore, the bigger problem for the Arizona Bar is that contrary to its contention that HB 2221 would have created a “hybrid” State Bar, the fact is that the State Bar of Arizona is already a hybrid organization. It serves as attorney regulator and attorney “trade association.”

So as both regulator and trade association, does the Bar actually belong under Rule 123? Moreover, how will that work in actual practice? Clearly when the Bar uses lawyer mandatory assessments to perform regulatory functions such as lawyer discipline or lawyer admissions, it acts as a part of the Arizona Supreme Court. But what about when the Bar spends mandatory assessments on non-regulatory discretionary programs and services? When is the Bar required to be transparent? All the time? Or only when members police it? Or only when the Court deems it? Or only when it acts as a regulator?

And what about the real nub of the objection? How about when the State Bar uses mandatory assessments for everything else under the Arizona sun having nothing to do with regulating the legal profession to improve the quality of legal services to the public?

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Credits: “Rod Serling – Twilight Zone button,” by Tony Alter at Flickr Creative Commons Attribution.

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Such a Clown! | by *~Dawn~*

Talk about questionable timing. Within days of the coming vote by Arizona’s Senate on a Bill that protects attorney free speech by requiring mandatory State Bar of Arizona dues be used only for attorney regulation, comes a blast email from that Bar’s President soliciting participation in an online attorney compensation survey. “Our hope,” says the email, “is to learn more about the current economic climate so we can better understand and report on trends in the profession, and in turn, serve you better.”

Serve you better? Multiple unwarranted fee hikes later, one of the most imperious and expensive state bars in the country now asks? It’s a bit late to open that stable door after the horse has been sold for glue.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/1c/1811_PoorAuthor_RichBookseller_byWashingtonAllston_MFABoston.jpeg/433px-1811_PoorAuthor_RichBookseller_byWashingtonAllston_MFABoston.jpegBut then that’s the Arizona Bar’s age-old leadership problem. It’s tone-deaf, insular, and bureaucratically backward. And at the risk of piling on, did I also say bloated, inefficient and nontransparent?

The State Bar of Arizona’s real predicament is that while purporting to serve its members — it also tells the public it polices them. Such too, is the member confusion when their regulator claims to want to better serve them. The Arizona Bar simply can’t reconcile the irreconcilable: the inherent conflict of interest of supposedly protecting and serving the public by regulating Arizona’s lawyers while — at the same time — serving as a trade association promoting the common interests of those lawyers.

Meantime, the Bar’s pending legislation worries have everything to do with self-interest. The loss of control over 100% of the mandatory fees paid by Arizona’s lawyers means an unwelcome paradigm shift.

HB 2221 would authorize the Bar to only collect voluntary membership dues for non-regulatory operations. This means that instead of relying on coercion for its funding, a voluntary Arizona Bar would have to attract members who are willing to pay for its services. To its dismay, the Bar would be forced to be competitive. It might need to truly trim overhead and lower its costs.

photoAs for its survey, it appears the Bar anticipates sparse participation. Otherwise, why deign to offer dubious incentives to take its online survey? Participants will be entered into a drawing for a chance to be one of three ‘winners’ of free registration to the Arizona Bar’s Annual “Butt-Numb-A-Thon” Convention“a value of $455 each.” Two additional winners will be selected to receive a $100 Visa gift card.

Besides fees paid to the vendor, the prize incentives mean the survey has an additional cost to members of $1565. The easiest money to spend is always somebody else’s.

It’s also unclear from the Bar’s email if this questionnaire replaces the triennial “Economics of Law Practice in Arizona” survey, which was last done in 2013. Three years ago, the median reported salary for an Arizona sole practitioner with an outside office was $100,000 while the home office solo median was $75,000. (By comparison, if you rely on the puny survey sampling in the Nevada Bar’s Young Lawyer Section Compensation Survey released this month, the median base salary of Nevada young lawyers was $90,000-100,000. The Nevada Young Lawyer survey was based on “160 voluntary respondents” or roughly 2% of the state’s total lawyer population).

In the past,the Arizona Bar has charged members $125 for its complete economics of law practice report. See It’s unknown if the complete results of this current survey will also be sold. For more about legal profession economics, see “How about a raise?”

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Photo Credits: “Such a Clown” by Dawn Ellner at Flickr Creative Commons Attribution License; “The Poor Author and the Rich Bookseller” by Washington Allston, Wikimedia Commons, public domain;“Riveting meeting,” by Mark Hillary at Flickr via Creative Commons-license requiring attribution.

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(As a lawyer assistance program volunteer first in Texas and now in Arizona, attorney Karyl Krug has years of demonstrated commitment to providing peer assistance, intervention, and rehabilitation support for colleagues whose professional performance is impaired because of substance abuse, dependency or mental health disorders. Krug says the Texas Lawyer Assistance Program is “nationally acclaimed” but the Arizona Bar’s program where she currently volunteers —  not so much. The Texas program was created in 1989 as the Bar’s approved peer assistance program under the authority of Texas Health and Safety Code Chapter 467. But in Arizona, confronted again with proposed voluntary state bar legislation, instead of structural improvement Krug detects a budding Arizona Bar public relations campaign as the Bar gins up surveys and marketing to belatedly put a better face on a “Member Assistance Program” Krug finds wanting. Here is her commentary).

The Arizona Bar has no Member Assistance Program.

They just want you to think they do.

Guest Blogger Opinion by Karyl Krug

During his truthiness tour to save his six-figure salary, State Bar of Arizona CEO/Executive Director John Phelps has repeatedly told lawyers and elected officials that the Bar performs two major services for lawyer members:

(1) vigorously prosecutes the unauthorized practice of law (it does so rarely and selectively); and

(2) helps lawyers in need with its Lawyer Assistance Program or Member Assistance Program, or whatever they are calling it this year.

The latter statement is so misleading I hardly know where to begin. For simplicity’s sake, I will henceforth refer to it as ALAP.

I’ve been a member of the State Bar of Arizona since 2011 but a member of the Texas State Bar for 23 years, as well as a long-time volunteer for the Texas Lawyers Assistance Program (TLAP). I am also currently an ALAP volunteer.

I testified at the Arizona House subcommittee hearings on the Bar that contrary to representations made by Mr. Phelps and elsewhere by State Bar of Arizona President Geoff Trachtenberg, ALAP is a shell of a program that is much worse than what the Arizona Bar had in 1999.

The woman running the ALAP, Regina Tepper, runs a total of five different programs for the Arizona Bar, including ALAP. She is stretched a little thin. She recently sent out the following by e-mail:

“Anecdotally it appears that we had increased success with the Peer Support network . . . some of you have shared with me that you have received calls for the first time ever and it is very encouraging that the word is getting out. If you have been to the State Bar offices in Phoenix recently you may have noticed that our ad for the Peer Support Network is now a regular slide on our lobby marquises. I hope you’ve noticed the great ad in the Arizona Attorney as well.

“As part of our year-end review of 2015, I am asking that each of you share with me the following information, if you have received calls from members, judges or their families during 2015:
• The number of individuals who contacted you. Please do not share names with me; as always, that is confidential.
• Whether those individuals contacted you for themselves or about another person
• How many contacts (total) you received, if different from the total number of individuals from whom you had contact
• A general categorization of the reason for their contact
o Mental health
o Alcohol or substance abuse
o Work-life balance, stress or burn-out
o Issue with non-lawyer family member”

Suddenly, there is a push, through screen images and advertising, to make bar members believe that there is a real Member Assistance Program in Arizona, although it is only “anecdotally” successful and the Bar has no idea how many lawyers in trouble have contacted volunteers. Mr. Phelps has been testifying that ALAP is an important and successful program for helping lawyers when the truth is he has no idea, except “anecdotally,” whether this relatively new alleged program is helping anyone or not.

As had been the case throughout the fight for a non-mandatory Bar, reality has been incrementally tweaked to bolster Mr. Phelps’s flights of fancy.

Sometime after the Bar quietly sent its former member assistance program director out of the building, it decided to start a shell ALAP. Today, ALAP is a list of volunteers with phone numbers.

One day of training, and you can volunteer to help — even if you have no experience whatsoever with alcohol and drug abuse, mental health issues, burnout, and other issues common to the legal profession that even many psychologists and psychiatrists are not fully competent to deal with.

Yet participation in ALAP is often compulsory. At the same time, ALAP’s budget for 2013-2014 is listed on the published two page AZ Bar budget as $50.

TLAP, by contrast, is run by several full-time employees and has a national network of resources; funds for lawyers in need of treatment; the annual Lawyers Concerned for Lawyers Convention; nationally known speakers; and a statewide network of volunteers ready to spring into action from Texarkana to Brownsville.

Lawyers in trouble are often referred to TLAP by the disciplinary arm of the bar, as well as by concerned individuals, before the disciplinary arm of the Texas Bar swings into action.

TLAP volunteers in recovery have to have at least a year of continuous sobriety. TLAP volunteers go out in pairs, after making an appointment, to talk to a possibly impaired lawyer or judge, to offer the lawyer help and safe harbor if they are willing to address their issues.

Participation is not compulsory. It is a third degree felony to blow anonymity of a lawyer who is referred to or seeks the help of TLAP. Their budget for the same biennium was in excess of $300,000. The Texas Bar’s published budget is 261 pages long.

I have tried to help out at ALAP but to my horror, after I received a couple of calls, I realized that ALAP has no program to send a lawyer to. One lawyer asked me if he should call the Arizona Bar for help. I said something like, “Oh, God, no!” There is no program to help them. And by that time I had seen disbarment orders citing the disbarred lawyer’s failure to complete ALAP or AMAP.

While ALAP says it is confidential, if your failure to complete ALAP shows up on a published disbarment order, it is not confidential.

Woman s face uid 14The good thing about networking is that you get to know people and, coincidentally, a speaker at the 1999 Arizona State Bar/Arizona Concerned for Lawyers CLE is an old friend. At one point, Arizona had a real ALAP and an ALCL and all the rest. I saw the copious materials for the 1999 course.

So at one point ALAP was a real deal. What happened? Who decided impaired lawyers were no longer worthy of real assistance from the Bar?

 

 

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Photos: morguefile.com, no attribution

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bartender | by ken ratcliff

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Portrait of the Artist Looking Unimpressed (day 27) | by Drab Makyo

Scientists at the University of London concluded last year “that the key to happiness is having low expectations.”

But did it really take scientists to reach that conclusion? Among others, the late novelist Olivia Goldsmith previously cornered the sentiment when she wrote, “The secret to true happiness is a combination of low expectations and insensitivity.”

Nonetheless, such aphorisms are helpful particularly for State Bar of Arizona members managing their low expectation happiness with their mandatory membership Bar.

Indeed, when mentoring law students and especially new lawyers, my oft-used lawyer happiness advice remains, “Remember, the State Bar is not your friend.” How else to interpret the Bar’s chest-pounding proclamations that its primary mission is to protect the public from its members?

Low-value smiley-face offers.

But thanks to successive blast emails the past weeks announcing new member ‘benefits,’ Arizona lawyers continue confounded. When it’s not acting like the guardian of the public weal, the Bar plays at being a professional association pretending to represent and advance the interests of Arizona lawyers.

Just the same, the Bar’s latest emails announce commercial discounts that barely trip the excitement meter with conventional discounts off products or services.

pfft! | by mat_walkerAlthough addressed from the Bar’s well-paid CEO, they’re undoubtedly creatures of low-level administrative staff and pitch stuff like insurance; share filing software; and most recently, virtual receptionist services. Each email was trapped by my spam filter and relegated to the junk folder. But that’s not to say the low-value affinity marketing discounts weren’t bereft of low expectations.

Little or no value to members.

Its own member surveys continually affirm most Bar members find these commercial offers wanting. In fact, the latest Arizona Bar member survey results announced last November are consistent. As many as 75% of respondents regard the Bar’s member discounts as having little or no value.

Car rental and office supply discounts or reduced prices on overpriced hotels? Most impressive — said no one, ever.

And even when the discounts involve law-related products and services, they aren’t singularly exclusive to a compelled membership association. Virtually all voluntary, optional-membership state bar associations offer similar commercial discount ‘benefits.’ See, for instance, the long list of “Member Benefits” provided by the voluntary membership Iowa State Bar Association.

Dog played with his food. | by BuzzFarmers

“I can’t let go of the excitement.”

 

Sadly, cutting bar dues or offering free continuing legal education didn’t pass the membership benefit threshold. That’s totally understandable — not when the Arizona Bar can instead tilt our excitement meters with 5% discounts on long-term care insurance.

https://i0.wp.com/cdn.someecards.com/someecards/usercards/1316445053538_5919679.png

Truly the negotiations to wrest the tremendous discounts from the grip of marketers must have been mano a mano.

https://upload.wikimedia.org/wikipedia/commons/b/b2/ChicagoCourtroomSpitoon_retouched.jpgNot since its lame “finish the ballot” contest (without as far as I know, bothering to announce a winner) has the Arizona Bar stirred so many spittoons of salivated anticipation.

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Photo Credits: “Portrait of the Artist Looking Unimpressed” by Madison Scott-Clary at Flickr Creative Commons Attribution;”Dog played with his dog food,” by BuzzFarmers at Flickr Creative Commons Attribution; “Unimpressed” by Kirk Strauser at Flickr Creative Commons Attribution; “pfft!” by mat Walker at Flickr Creative Commons Attribution; Chicago courtroom scene with spittoon at Wikimedia Commons, public domain.

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mooning the neighbourhood | by Pixel Addict

In February, the U.S. Supreme Court took a bite out of dentists in North Carolina. And at the same time, the high court made state professional boards everywhere nervous, including mandatory state bars.

By a 6-3 vote in North Carolina Board of Dental Examiners v. Federal Trade Commission, the Supreme Court imposed a higher hurdle for nonsovereign licensing boards to gain the state-action immunity that shields board members from federal antitrust liability.

Coincidentally, just a few years ago, a wise-cracking dentist friend had mentioned during a golf round how dentists were becoming annoyed over the growing number of non-dentists — mostly, cosmetologists, offering teeth-whitening services to the public. Beauticians were not only beautifying hair and skin but were now traipsing onto teeth territory and offering lower cost teeth-whitening services than dentists.

I only remember his story because, as a horse-owner, several years before, horse veterinarians around the country were trying to get non-veterinary dental lay practitioners (NVDLPs) banned from floating a horse’s teeth. The “float” is the name of the file used to smooth or contour a horse’s teeth and horse-shoers, self-taught cowpokes, and self-described ‘equine dental technicians’ had been biting into horse vet incomes by offering more affordable floating services.

A license for everyone?

When it comes to protecting turf, it’s always financial self-interest at the root of it. Never mind the chest and table pounding about protecting the public. No wonder an increasing number of everyday occupations hanker for licensing ‘protection.’ They think it heightens consumer perceptions of quality and increases demand. And of course, licensing restricts supply which translates into higher prices.

But in many instances, occupational licensing offers only an illusion of quality while doing little to actually protect consumers. Instead, occupational licensing simply creates self-serving barriers to entry, which makes the provided service more expensive and more unavailable.

And because it means additional revenue while offering a public protection sop to the electorate, government bureaucrats don’t mind creating more licensing categories to feed the bureaucratic maw. No wonder some call it a plague.

 

Tooth or Consequences in North Carolina.

So what happened in North Carolina is that its 8-member dental board made up of 6 licensed dentists elected by their fellow dentists, began sending out cease-and-desist letters to individual non-dentists and even to the North Carolina Board of Cosmetic Art Examiners warning them that under North Carolina law, the unlicensed practice of dentistry was a crime. And teeth-whitening was considered the practice of dentistry.

The cease-and-desist letters totaling 47 had their intended effect, chasing out the non-dentist teeth-whiteners out of the dental temple. But they also attracted the unwanted attention of the Federal Trade Commission (FTC) who suspected the board’s actions weren’t motivated so much by high-mindedness about consumer protection as they were over non-dentist competitors gumming up revenues.

In the FTC’s view, where the regulatory agency has a “financial interest in the restraint [it] seeks to enforce” and is “controlled by private market participants who [stand] to benefit from the regulatory action,” the state action exemption required active supervision “in circumstances where the state agency’s decisions are not sufficiently independent from the entities that the agency regulates.”

As a consequence, the FTC concluded that the Board had to meet the active supervision requirement if it wanted to benefit from state-action immunity. “Because North Carolina law requires that six of the eight Board members be North Carolina licensed dentists, the Board is controlled by North Carolina licensed dentists.” Moreover, dentists perform teeth whitening.  Therefore, “Board actions in this area could be self interested.” You think? See “How a state dentistry board hounded non-dentist teeth-whiteners out of North Carolina” and Brief of Respondent Federal Trade Commission. 

A bite out of the bar. 

roger daltrey shows us why his primal scream from "won't get fooled again" is still the best in rock 'n roll | by greg westfall.

Why should lawyers care?

Because it may lead to more legal challenges given our over-regulated legal market. And it will engender more defiance against the host of anti-competitive actions taken by mandatory bar associations. Indeed, on June 3, 2015, Legal Zoom filed a $10.5M antitrust suit against the North Carolina Bar.

Some legal analysts even think it will mandate more “active supervision” of state bars by their state supreme courts. Said one, “the decision probably will lead to state supreme courts having stronger relationships with their state bars and oversight to see whether they are acting consistent with statutory authority or the authority granted by their state supreme court.” Still others think it might shake up unauthorized practice of law (UPL) restrictions and “revive challenges to UPL rules.” See PrawfsBlawg: Teeth Whitening for Lawyers

munch - it's a scream | by oddsock

Oh, woe. Oh, scream.

And claiming their work would be impaired, mandatory bars had predicted a parade of horribles in the wake of the decision. By denying them state action immunity under the Sherman Act, private regulatory boards with a controlling number of decision-makers actively participating in that profession, i.e., “market participants,” would be forced to act under a clearly articulated state policy and under active supervised by the state. “Active market participants,” the Court said, “cannot be allowed to regulate their own markets free from antitrust accountability.”  Oh, woe. Oh, scream.

 

Scream | by MooganicAs Amici Curiae in support of the North Carolina Dental Board, the North Carolina, Nevada, West Virginia and Florida State Bars had paraded the horribles in their Brief, including that “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.

Additionally, they predicted “State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.” And worse, they claimed lawyers won’t want to serve on bar governing boards “for fear of being sued—and of being held individually liable—in treble-damage antitrust actions.” Last, they proclaimed those “who do agree to serve may be deterred from fulfilling their state-authorized enforcement duties against defendants who threaten antitrust claims.” 

The non-state agency state bar. 

Bite Me Bar Sign | by Sam HowzitStates are exempt from federal antitrust laws for their acts when acting in their sovereign capacities — even when those acts would violate antitrust laws if done by a private party. Not so state boards with active market participants who should now be treated like private entities and who to receive state-action immunity, must now meet the two-test requirement for private entity immunity: a clearly articulated anticompetitive statute and active supervision by the state.

The Scream | by adactio

As for the State Bar of Arizona, legal elites here have been pondering the implications of the North Carolina case, including whether or not to leaven the influence of active market participant lawyers with more non-lawyers on its governing board.

But in my opinion, there are likely more ominous reverberations than merely decreasing the number of foxes in the hen-house. As its website proclaims, the Arizona Bar proudly claims it’s “not a state agency.” So it would seem that as “a nonsovereign actor controlled by active market participants,” to avoid antitrust liability, it will have to work even harder now to satisfy the two requirements of clearly articulated state policy and active State supervision.

In Bates v. State Bar of Arizona 433 U.S. 350 (1977), the U.S. Supreme Court held that the Arizona Supreme Court’s rule restricting lawyer advertising violated the First and Fourteenth Amendments and ruled that commercial speech merited First Amendment protection. Admittedly, the nation’s high court went along with the Arizona Supreme Court’s determination in Bates that the Arizona Bar was immune from federal antitrust liability because in enforcing the Court’s then rule against lawyer advertising the Bar’s role had been “completely defined by the court” and moreover, the Bar acted “as the agent of the court under its continuous supervision.” 

After North Carolina Dental Board v. FTC, whether this will be true in every instance implicating anticompetitiveness should be worrisome for the non-state agency Arizona Bar particularly when Goldfarb v. Virginia State Bar (421 U.S. 773, 791 (1975) was also cited by the Court for the principle that while state bars are a state agency for some limited purposes, that fact does not create an “antitrust shield that allows it to foster anticompetitive practices for the benefits of its members.”

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Photo Credits: “mooning the neighbourhood,” by Pixel Addict at Flickr Creative Commons Attribution; “Roger Daltrey …” by greg westfall at Flickr Creative Commons Attribution;”Bite Me Bar Sign,” by Sam Howzit at Flickr Creative Commons Attribution;”Munch — it’s a scream,” by Ian Burt at Flickr Creative Commons Attribution;”The Scream,” by Jeremy Keith at Flickr Creative Commons Attribution;”Scream” by Mooganic at Flickr Creative Commons Attribution.

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