Focus on Ethics & Civility

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 3 Pg. 34
• Pages: 34
• Publication year: 2016

Focus on Ethics & Civility No. Vol. 29 No. 3 Pg. 34 Utah Bar Journal June, 2016

May, 2016

Could Our "Ethics" Actually Be Illegal?

Keith A. Call, J.

In an eye-popping decision, the United States Supreme Court recently held that a state board of dental examiners, dominated by practicing dentists, was subject to Federal Trade Commission antitrust enforcement because it sought to prevent non-dentists from offering teeth-whitening services. The Court stated that a non-sovereign actor controlled by "market participants," such as the dental board in question, will enjoy "state action" immunity from antitrust laws only if the "State" has articulated a clear policy to allow the anticompetitive conduct and only if the "State" provides active supervision of the anticompetitive conduct. N. Carolina State Bd. of Dental Exam'rs v. Fed. Trade Comm'n, 135 S.Ct. 1101 (2015).

This decision highlights the tension between a desire to protect consumers of professional services and a desire to protect against competition from outsiders to the particular industry. The Supreme Court's opinion clearly reveals a concern that the dentists involved in that case may have been more interested in protecting their own business turf than protecting the public from real harm. Translating this to the legal profession, one could ask whether rules and regulations prohibiting the unauthorized practice of law are protecting consumers, or whether they are really protecting lawyers.

In fact, the Dental Examiners case has already been used as a sword against lawyers. Shortly after the Dental Examiners case was issued, LegalZoom sued the North Carolina State Bar. In its complaint, LegalZoom alleged that the "North Carolina State Bar, by and through its agents and Council members, has engaged in unsupervised anticompetitive activity under the guise of regulating the 'unauthorized practice of law'" LegalZoom, com, Inc. v. N. Carolina State Bar, et al, No. l:15-CV-439 (M.D.N.C.). The complaint sought over $10 million in damages. See id. (seeking damages and injunctive relief). That case resulted in a consent decree that allows LegalZoom to provide certain types of legal services in North Carolina, subject to certain consumer protection measures.

Three consumer groups have reportedly asked all state attorneys general to investigate various state licensing boards for compliance with Dental Examiners. See Debra Cassens Weiss, State Bars May Be Affected by SCOTUS Antitrust Case, ABA...