On February 25, 2015 the U.S. Supreme Court, in a majority opinion, upheld the ruling of the Federal Trade Commission that members of the State Board of Dental Examiners, who are practicing dentists and thus market participants in the market which they are regulating, are not entitled to immunity for their actions stifling competition in the market.
This decision is, in my opinion, a writing on the wall for the regulation of the legal profession the way it exists today in the United States.
As an example, in the State of New York attorney discipline and prosecutions for unauthorized practice of law, is allowed to be handled by market participants, practicing attorneys, who very obviously have a vested financial interest to eliminate competition, especially as the number of paying clients dwindles.
As far as I know from research of disciplinary proceedings against attorneys in other states, it is not much different. It is practicing attorneys who target other practicing attorneys, their competitors, for discipline.
At least in New York where I researched the subject exhaustively, the "attorney grievance committees" or "professional conduct committees" existing in the 4 appellate division are not explicitly authorized by statute, and are thus within the prohibition as to anti-competitive practices as set in the decision of the U.S. Supreme Court of February 25, 2015 North Carolina State Board of Dental Examiners v. Federal Trade Commission.
What is authorized by statute, Judiciary Law 90(1)(c) are the so-called "character and fitness committees" that appellate divisions are authorized to appoint only and specifically to "investigate the character and fitness of applicants for admission to the bar".
As to investigating and prosecuting of attorney misconduct, Judiciary Law 90(7) authorizes this only for two categories of prosecutors:
(1) "any district attorney within the department";
(2) an "attorney and counsellor-at-law" appointed by the court specifically for a particular investigation or prosecution, since Judiciary Law 90(7) clearly states that the court may fix compensation for such attorneys only "during or upon termination of the investigation or proceedings".
Moreover, since compensation of such an attorney or attorneys prosecuting a disciplinary case against an attorney must be charged against a county, as provided by statute, Judiciary Law 90(7), it is very questionable that such prosecutors are representatives of a state, rather than of a county, and it is very questionable that such prosecutors would be entitled to any kind of "sovereign immunity" for their actions.
By the way, expenses of the office and auxiliary personnel for the "character and fitness committees" to be appointed for verification of fitness of candidates for admission to the bar, are also passed to either the City of New York (in the Appellate Division 1st Department), Judiciary Law 90(1)(f), or to counties (in the Appellate Division 2nd Department) pursuant to Judiciary Law 90(1)(g).
As to the attorney grievance committees of the 3rd and 4th Departments which investigated and prosecuted me (the 4th Department committee continues at this time), Judiciary Law 90 does not provide for an office or support staff for even "character and fitness" committees for admission to the bar, instead providing only for per diems.
Apparently, a taxpayer investigation is in order as to how offices investigating and prosecuting attorney misconduct are funded in New York, because they certainly are not funded in accordance with the statute, Judiciary Law 90.
Instead of following Judiciary Law 90(7), appellate divisions appoint, instead of prosecutors for a particular investigation or prosecution, "committees", investigators and attorneys for such committees, and funds for offices for such committees, none of which expense is authorized by statute, and fix compensation for attorneys for such "committees" before investigation or prosecution, as a set yearly salary, which is similarly not authorized by statute.
Moreover, the "committees" employ their own investigators and several attorneys, none of which is authorized by statute either.
As a New York taxpayer, I am not at all pleased with such a waste of funds.
As an attorney who is prosecuted by an illegal body consisting of market participants I am not pleased either, and there appears to be a new avenue of proving that attorney disciplinary proceedings in New York are, on top of being a perfect tool of political oppression of attorneys doing their jobs and criticizing judicial misconduct and misconduct of politically connected attorneys, attorneys working for the government, or of any government officials, this is also a perfect tool to eliminate competition - and, as of now, members of such Committees are no longer covered by immunity if there is no political accountability for their actions by the State.
Since the very existence of the "professional conduct" or "grievance" Committees that investigate and prosecute attorney misconduct is not specifically authorized by statute, at least, in the State of New York, and since all such "committees" consist mostly attorneys, application of the North Carolina Board of Dental Examiners v. Federal Trade Commission to attorney disciplinary proceedings is obvious.
Nor is there any supervision of what the committees are doing by the State. And that is exactly why the U.S. Supreme Court ruled against the Board of Dental Examiners in North Carolina, indicating that such board members are not entitled to the so-called "state-action antitrust immunity".
The bottomline is - members of the attorney disciplinary committees are now, likely, not covered by antitrust immunity either and may be sued for their prosecutions or, rather, persecutions meant to eliminate competition.
I wonder how many attorneys will now be willing to "serve" on these committees.
It is actually a writing on the wall for attorney licensing, the way it exists nowadays. It is only a matter of time when the axe will fall and the whole scheme of attorney licensing will be pronounced unconstitutional and unlawful under federal laws.
No wonder state bar associations filed amicus briefs in this case in droves - they felt the doom is coming.
And it will come, as it should.
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