State bars may be affected by SCOTUS antitrust case; public interest groups want review by state AGs
Public interest groups are pointing to state bars as an example of state licensing boards that could be affected by a February decision by the U.S. Supreme Court involving a state dental board and state-action antitrust immunity.
The three groups are asking state attorneys general to consider whether state licensing boards are complying with the Feb. 25 decision, North Carolina State Board of Dental Examiners v. Federal Trade Commission, the National Law Journal (sub. req.) reports. The decision held that a North Carolina dental regulatory board didn’t have state-action antitrust immunity in a challenge to its authority over nondentists who perform teeth whitening.
The Supreme Court decision said that when a state board is controlled by active market participants in the market it regulates, state-action antitrust immunity can’t be invoked unless the challenged restraint of trade is affirmatively expressed by state policy, and the policy is actively supervised by the state.
Mark Merritt, an antitrust partner in a Charlotte law firm who is vice president of the North Carolina State Bar, told the National Law Journal that the North Carolina bar is supervised by the state supreme court, unlike the dental board in the Supreme Court decision. He said the decision will likely lead to stronger oversight by state supreme courts over state bars.
The three groups that wrote to state attorneys general are the Consumers Union, the Citizen Advocacy Center and University of San Diego School of Law’s Center for Public Interest Law. To comply with the decision, their letter said, regulatory boards controlled by active market participants will have to change in structure so that a supermajority are public members, or the board will have to be subject to active supervision by the state. The groups’ letter to California Attorney General Kamala Harris is here (PDF).
The groups refer to state bars in a footnote. Most members of regulatory boards believe they are serving the public interest, do not receive any pay for their efforts, and intend to serve democratic values, the footnote says.
“But they are necessarily part of the tribal grouping that our occupational associations have fostered,” the footnote said. “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.”
Related article:
ABA Journal: “Dental board ruling may drill into state bar associations’ immunity”
