SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless

The Supreme Court has announced that it will be hearing the case of North Carolina Board of Dental Examiners v. Federal Trade Commission, 717 F.3d 359 (4th Cir. 2013).  This case deals with the North Carolina Board of Dental Examiners’ (NCBDE) ability to regulate the unlicensed practice of their profession. In its decision, the Fourth Circuit found that the NCBDE, comprised of licensed dentists who have been elected by their peers, was not immune from federal antitrust laws and was thus not allowed to regulate its professionals. Particularly, the court explained that “when a state agency is operated by market participants who are elected by other market participants, it is a ‘private actor” that can only maintain state action immunity from federal antitrust laws if it is “actively supervised” by state officials.

The structure of NCBDE is familiar as most state bar associations are structured similarly.  Due to the potential effect of this decision on state bar associations, the North Carolina State Bar Association (NCSBA) submitted an amicus brief to the Supreme Court noting the perils of opening up state regulatory bodies to antitrust liability. Specifically, NSCBA pointed out that upholding the Fourth Circuit decision would limit the states’ ability to regulate state-licensed professionals and impair their ability to “enforce state laws enacted to protect the public.”

The NSCBA went on to list four ways in which the decision would harm state bar associations: (1) limited resources will go to litigating the issue of whether state bar associations are entitled to state action immunity; (2) if no immunity is found, state bar associations will have to use limited resources to defend antitrust lawsuits, even in jurisdictions where the state has explicitly authorized them to regulate the conduct in question; (3) this will deter lawyers from serving on their bar association for fear of being named personally in antitrust lawsuits; and (4) threats of antitrust actions may deter bar counselors from fulfilling their duties. If the Supreme Court were to uphold the Fourth Circuit’s decision, the ability of state bar associations to regulate and discipline lawyers would be severely curtailed. In short, this case could leave bar associations nationwide tethered and toothless.

A copy of NSCBA’s amicus brief can be found here. For more information about the case and access to other amicus briefs, click here.

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