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What Now? After North Caroline Board of Dental Examiners v. FTC

By now you have probably heard of the U.S. Supreme Court case North Carolina State Board of Dental Examiners v. Federal Trade Commission (135 S. Ct. 1101). This case broadly held that a state regulatory board is subject to the anti-trust provisions of the Sherman Act if a controlling number of its “decisionmakers are active market participants in the occupation the Board regulates”. The exception is if the board acted in accordance with a clearly articulated state policy and was subject to active supervision by the state. In State Board of Dental Examiners, the board was made up primarily of practicing dentists subject to only minimal state supervision. The board held that “teeth whitening is ‘the practice of dentistry’” and drove non-dentists out of the business. The FTC brought an action against them, which ended with this Supreme Court decision – much to the dismay of the dentists as well as professional regulatory boards in other states made of the professionals being regulated.

Justice Alito in his dissent raised the issue that: “Determining whether a state agency is structured in a way that militates against regulatory capture is no easy task, and there is reason to fear that today’s decision will spawn confusion.” And there has been a good deal of confusion, concern and activity on the part of states and their regulatory boards – including boards regulating lawyers.

In order to try and help, in October 2015, the FTC issued a Staff Guidance on two questions: “First, when does a state regulatory board require active supervision in order to invoke the state action defense? Second, what factors are relevant to determining whether the active supervision requirement is satisfied?” I am not sure the guidance has been much help in avoiding Justice Alito’s concerns about spawning confusion – but let’s see how it affects Illinois lawyers.

In balance, not much. Since lawyers in Illinois are regulated by the Illinois Supreme Court, and that court adopts and enforces the Rules of Professional Conduct and determines who can and cannot practice law, Illinois seems to come under the state action exception to the Sherman Act as described in State Board of Dental Examiners and the FTC Guidance. However, the Guidance (somewhat gratuitously) included the following example as one of the “scenarios that have raised antitrust concerns: . . . - A regulatory board controlled by attorneys adopts a regulation (or a code of ethics) that prohibits attorney advertising, or that deters attorneys from engaging in price competition. Cf. Bates v. State Bar of Ariz., 433 U.S. 350 (1977); Goldfarb v. Va. State Bar, 421 U.S. 773 (1975).”

The problem with these examples is the Bates decision was decided on the First Amendment grounds and in Goldfarb the Supreme Court specifically found that the price fixing was the result of private activity without state action. Neither case is relevant to Illinois, nor I suspect to most other states where the legal profession is under court regulation. However, State Board of Dental Examiners the Guidance raise concerns that actions by bar associations or other private associations of lawyers will be subject to anti-trust allegations by aggrieved parties as a matter of course. It means that private associations of lawyers will have to be careful when issuing ethics opinions or proceeding against the unauthorized practice of law in order to avoid acting in ways that can be construed as attempts to restrain trade.