The State Bar of California has established the Governance in the Public Interest Task Force to help improve the public protection function of the State Bar. California law holds the protection of the public as the State Bar’s highest priority. Responsive Law believes that unchecked self-governance by lawyers is not in the interest of the public, and issued comments offering guidelines that would better protect the public.
After the North Carolina Board of Dental Examiners v. Federal Trade Commission case last year, state bar associations have found themselves vulnerable to antitrust suits, and the State Bar of California is no exception. For a full analysis of the Dental Examiners case click here. Subject to approval by the California Supreme Court’s approval they can pass regulations that restrict the practice of law by even highly trained non-lawyers. While the State Bar argues that these restrictions protect the public, many of the state bar’s members support these measures as a way to protect themselves from competition.
Many state bars claim that they are exempt from antitrust liability because they are supervised by the courts, which are a branch of government. However the justices on the California Supreme Court are required to have been practicing lawyers for ten years before becoming justices, and most return to private practice after their terms end. It is against the public interest for these justices to be making decisions on regulations that will directly affect their financial interests when their term is over. Furthermore, under FTC guidelines, they still count as active market participants, which means that antitrust liability would still apply to the Bar’s actions.
To resolve this conflict, California should grant a non-judicial agency oversight of any anti-competitive actions proposed by the State Bar. This would make the State Bar more accountable to the public.
Responsive Law urges the State Bar of California to recognize that the public cannot have a say in how they receive or pay for legal services unless the protectionist impulses of lawyers are curbed by an agency without a financial stake in allowing such impulses.
To read Responsive Law’s full testimony click here.
James Duffy is a Responsive Law Intern.