Attorney regulation is part of occupational licensing.
I have posted many articles on this blog showing that attorney licensing does not protect consumers, does not guarantee good levels of education, training or integrity of members of the bar, monopolists in court representation, and does not ensure protection of people's constitutional rights.
In fact, dependence of court representatives upon the government that those court representatives may have to challenge to protect their clients' constitutional rights, guarantees the opposite, that attorneys will sell out, with few exceptions, their clients' interests in the name of self-preservation.
Therefore, I view any efforts to undo the monopoly of the entrenched legal profession from its monopolistic position that hurts the economy and hurts people's access to justice in this country, is a good thing.
I was recently alerted to a conceptually new challenge on attorney regulation, made in Florida.
Florida, as the majority of jurisdictions in the United States has what is called an "organized bar".
That means that the local state bar association, a labor organization, usually a non-profit, comprised to protect interests of its members, is also "vested" by the state government with state power to regulate occupational licensing among its members.
Well, that is exactly what was the basis of the challenge.
In a motion filed on May 12, 2016, an attorney in Florida asserted that Florida Bar is a Labor Organization under a federal statute, National Labor Relations Act (NRLA), 29 U.S.C. 152(5).
The argument then goes that the Florida bar does deal with employers regarding conditions of work of its members - thus discharging its functions as a labor organization under 29 U.S.C. 152(5).
If the Florida Bar is a labor organization under NRLA, the argument then goes, the NRLA prohibits labor organizations to "threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, whether in either case an object thereof is forcing or requiring any person to cease doing business with any other person".
The lawyer next raises the issue of federal pre-emption of inconsistent state law:
Since, as the lawyer argues, National Labor Relations Act pre-empts inconsistent state law, specifically, regulation of attorneys by a labor organization, Florida State Bar, when Florida State Bar attempts to disbar the attorney, it violates NLRA:
And, since there is a pre-emption of actions of the Florida Bar through NRLA, the disciplinary court has no subject matter jurisdiction over attorney disciplinary proceedings, and the case should be dismissed.
Thus, nearly at the same time, in two states, Tennessee and Florida, there emerged two new ways to attack validity of occupational licensing -
- through a State Constitution prohibiting monopolies without exceptions, which precludes a state legislature from enacting laws legalizing such monopolies, even if the states are allowed to do so by federal law (Tennessee, the Tennessee State Constitution, Article I Section 22) and through
- the federal National Labor Relations Act, and a federal pre-emption doctrine in the 32 states with "organized bars" (bar associations allowed to act as regulators of its own profession):
- New Hampshire,
- New Mexico,
- North Dakota,
- Rhode Island,
- South Carolina,
- South Dakota,
- Washington State,
- West Virginia,
- Wisconsin, and
Since jurisdictions that do not have organized bars, usually have reciprocity agreements with jurisdictions that do have organized bars, the innovative challenge currently brought in Florida may affect all attorneys practicing law in the United States.
I will follow the progress of both the Tennessee lawsuit and the motion to dismiss in Florida and will report about it on this blog.