Since the members of the State Board of Dental Examiners who are market participants at the same time, were engaged in self-serving anti-trust activity and were not actively supervised by the state, the U.S. Supreme Court stripped them of immunity for their conduct, opening the door to lawsuits against them and members of state boards in similar position to the dentists, such as members of attorney disciplinary committees.
By the way, New York immediately reacted to the decision by creating a "Commission", composed of practically exclusively market participants (again) to see how to make attorney discipline "fairer", more uniform and effective.
At this time that Commission is holding "lunch-time during vacation time" "public" hearings with testimony "by invitation", on an extremely short notice to the public.
I recently blogged about those pro forma "hearings", about financial interests of individuals who handle those hearings in the outcome of the hearings, including the vested financial interests in preservation of the status quo of the "interested experts" who are members of the Commission.
What the Commission is trying to do in reality, though, is to prevent the inevitable - the deregulation of the legal profession, the profession that is, despite its self-proclaimed "honor" is stifling development of the law, is breeding corruption on all levels and in all branches of the government and is preventing effective and affordable representation in court for majority of Americans.
It is not accidental that bar associations from around the country aggressively, but unsuccessfully fought through "friend of the court" briefs to prevent the decision by the U.S. Supreme Court of February 2015 in the case North Carolina Board of Dental Examiners v. Federal Trade Commission.
I followed up in April of 2015 with a complaint to the Federal Trade Commission complaining that the entire way how New York State administers attorney discipline is in violation of anti-trust laws, both to attorneys where attorney members of disciplinary committees are selectively choosing to prosecute solo attorneys, independent attorneys, criminal defense and civil rights attorneys and critics of governmental misconduct, and that the public is blocked from affordable legal service because most of the disbarred and suspended attorneys are engaged in pro bono and low-cost representation.
I used the Dental Examiners case in my complaint, and I am sure I am not the only one who is or will be using this case against bar associations in the future.
For example, now the State of North Carolina is being sued for antitrust violations by LegalZoom, a well known provider of information packages about the law, the provider that was aggressively pursued by the bar associations around the country for providing to people cheaper information than what the lawyers' "advice".
I must note that bar associations were trying to prevent the flow of information from reaching the consumers at the time when - and it is consistent statistics around states in the United States - over 80% or more, or over 4/5 of litigants in the U.S., cannot afford an attorney, see also addresses of New York State Chief Judge year in and year out where the "justice gap" is mentioned.
Under these specific circumstances, to attempt to deprive them of a cheaper option to gain information about the law is, in my personal opinion, quite dishonorable, contrary to the self-anointing by the legal profession as an "honorable" profession.
The LegalZoom is quoting the case regarding the Dental Examiners in its federal complaint. Moreover, the action against members of the state bar's disciplinary committee in their individual capacity, as noted on the caption of the lawsuit, has become possible because of decision of the U.S. Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission.
The essence of the federal complaint is that the North Carolina State bar is self-servingly suppressing competition in violation of federal antitrust laws.
The complaint of the LegalZoom notes that after the decision in February of 2015 by the U.S. Supreme Court, predicting their vulnerability to such a lawsuit, North Carolina lawyers appealed to the state legislature to impose "active supervision" upon the state's attorney disciplinary boards to obtain immunity from such lawsuits, but the legislation was not yet passed.
Here are portions of the LegalZoom's complaint against the North Carolina State bar on this issue:
Moreover, the "active supervision" requested was once again by an attorney - by the Attorney General, who is also a market participant since without a license he or she would not be able to maintain the position of the Attorney General, with its salary and benefits.
With due respect, supervision of attorneys by yet another attorney should not constitute active supervision by a neutral state body.
But what completely blew my mind was what exactly the North Carolina bar was barring (the pun is intended) in terms of the services provided by LegalZoom.
The North Carolina State bar was barring LegalZoom's from providing to consumers - guess what? - prepaid packages of legal services, which had to be necessarily provided by attorneys licensed in North Carolina!
The outcome of this case in federal court may have a deep impact upon the entire legal profession and upon what constitutes "practice of law" and what can or cannot be regulated by the states in view of federal antitrust laws, even if the legal profession is regulated.
The "problem", I guess, was that the services provided by attorneys licensed in North Carolina, were cheaper than those that the "legal elite" represented by members of attorney disciplinary committees were providing, because such services were provided on a "subscription" basis through LegalZoom and at lower prices to the consumer, undermining the members' of the State Bar committee's own financial livelihood.
So, the LegalZoom case against North Carolina State Bar is actually much stronger than the case against Dental Examiners who claimed that non-dentists were to be regulated as dentists for provision of teeth whitening.
This is the case where the State Bar consisting of market players with vested financial interests (all attorneys sworn to protect the State and Federal Constitutions and the law, by the way) are violating federal law to advance their own financial interests by banning legal services that are more affordable than those that members of the State Bar Committees are happy with. That is price regulation, pure and simple, among members of the legal profession, and that is exactly within the core of protection of antitrust laws.
That such actions are dishonorable is not even a legal question - it is plain for everybody to see.
Judging by the docket report of the case from Pacer.gov, defendants in LegalZoom, Inc. v. North Carolina State Bar et al, Case No. 1:15-cv-439 in the U.S. District Court for the Middle District Court of North Carolina were given until August 20, 2015 to answer the complaint of LegalZoom.
I will report on the developments in the case that affects everybody's right to effective and independent representation and access to information and affordable legal services.
Yet, the important thing that the LegalZoom's lawsuit did, whether it will or will not be won in court, is to put in front of a court of law the issue that private market players claim the power of the government to block access of competitors to the market and thus make badly needed legal services more scarse and less affordable, in the market that is already suffering from scarcity and lack of affordability of services.
The very same situation is happening across the country and in New York, and it is obvious that the band-aid of the new "Commission" consisting, again, of market participants with vested interest not to change anything essential in restrictions for provision of legal services in the State of New York and to continue to use regulation as a tool squashing competition by independent and honest attorneys.
That's why the LegalZoom case, if decided in LegalZoom's favor, can spell the doom for regulation of the entire legal profession, for the benefit of all Americans who are not trained enough to jump through riddles of lawyerspeak to represent themselves in court, do not have enough money for an attorney to do that and, if they have money for an attorney, the attorney is not truly independent to raise all issues in court because the attorney's own livelihood is in the hands of the people whose misconduct he may be duty-bound to challenge on behalf of a client.
Under the current scheme of regulation of the legal profession, litigants lose and true access to justice is nothing more than a fiction.
LegalZoom's lawsuit can help change that in the long run.