Hello and welcome to this New Year’s Eve 2015 Ethics Alert blog which will discuss the recent decision of the Washington State Bar to suspend some ethics opinions because of antitrust concerns arising out of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission. I previously blogged about the Supreme Court’s decision here: USSC NC dental licensing opinion, the LegalZoom antitrust lawsuit in North Carolina based upon the USSC opinion here: LegalZoom filed antitrust lawsuit against NC Bar and the settlement of that lawsuit here: LegalZoom settles antitrust lawsuit against NC Bar.
According to a recent ABA Journal article, the Washington State Bar Association has advised its ethics committee to stop issuing ethics opinions which could be interpreted as having the effect of restraining trade in the legal services market. The bar stated that it suspended the opinions so it could “proceed very deliberately” in the wake of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.
That U.S. Supreme Court decision permitted an antitrust action against the North Carolina state dentistry board for its decision prohibiting non-dentists from whitening teeth to proceed. The opinion stated that when a state board is controlled by active market participants in the market it regulates, state-action antitrust immunity cannot be applied unless the restraint of trade is affirmatively expressed by state policy and the policy is actively supervised by the state.
Bottom line: This is more fallout from the 2015 USSC Dental Board decision. As I have stated in my previous blogs, there have been lawsuits against state Bars in the past attacking the entity’s state action immunity. The Supreme Court opinion refers to three specific cases and appears to suggest that these cases should be interpreted to mean that only the actions of a state entity which is actively supervised by the state (i.e. the Supreme Court in the case of a state Bar) have antitrust immunity and the rest of the entity’s actions may not have such immunity.
I wish you and yours a very happy and healthy 2016!
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Joseph A. Corsmeier, Esquire
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