What do teeth whitening and legal services have in common? According to briefs filed in the United States Supreme Court, dentists seek to define teeth whitening services as the practice of dentistry in the same way that lawyers seek to define all services related to the law as the practice of law. The motivation for both actions arguably is to protect the revenue of guild members rather than protecting clients.
The case simmered up in North Carolina. Over a decade ago, the North Carolina Board of Dental Examiners began issuing cease and desist orders to beauty shops and other businesses that offered teeth whitening services. The Dental Board sought to stop anyone who was not a licensed dentist from performing teeth whitening services. The Federal Trade Commission brought suit, alleging the Dental Board’s actions violated federal anti-trust law. The Dental Board contended that its actions were immune from federal antitrust law on the grounds that state governments and private parties acting under state directives are not subject to federal antitrust law. The Fourth Circuit Court of Appeals did not agree and the Board of Dental Examiners appealed. The case was argued in the United States Supreme Court last week.
A decision could provide precedent in the legal profession. As noted in a recent Forbes article by George Leef, several state bar associations have filed amicus, or friend of the court, briefs supporting the Dental Board and several alternative legal providers and law professors have joined together to file an amicus brief supporting the Fourth Circuit ruling in favor of the FTC.
The alternative providers’ brief argues that professional regulatory bodies are more like private citizens than state actors and, therefore, should be subject to antitrust law.
Typically, professional self-regulatory bodies like the dental board here and state bar associations are elected by and accountable to their members, rather than to the public.
The brief attacks the argument that restricting access to legal services protects consumers from harm committed by individuals who do not have a law degree and are not bound by the ethical rules. Citing research showing the ‘justice gap’ between people who could use legal services and those who receive them, the brief contends that anti-competitive use of state bar authority is actually harming the public and denying them access to justice.
The parallels between the dental case and the legal profession are clearly drawn in the brief.
State bar [unauthorized practice of law] enforcement – especially when challenging perceived competition from non-lawyers – often suffers from the same inadequacies as the dental board’s actions here. There is often no clearly articulated state policy on what constitutes “the practice of law.”
What constitutes UPL is notoriously poorly defined, often treated on a case-by-case basis, leaving state bars with broad discretion to choose targets for enforcement.
State bars face little supervision by the state or scrutiny by the public. Their UPL investigations often take place behind closed doors and outside the reach of public information statutes.
The brief points out that other officials, elected by the public or appointed as government representatives, are in a position to enforce unauthorized practice claims.
Bar associations may effectively regulate their members’ admission and professional conduct without also holding the power to enforce their members’ monopoly against nonmembers. Unauthorized practice restrictions may be enforced by numerous state officials who, unlike state bar associations, do not have a direct financial interest in suppressing perceived competition. Judges, state and federal prosecutors, administrative agencies and attorneys general all typically have the power to take action against the unauthorized practice of law.
I am curious to see what the Court will do, aren’t you?