Category Archives: Bar antitrust

Florida Bar’s Board of Governors considers rule revisions prohibiting misleading Google ad words and permitting credit charges to clients

Hello everyone and welcome to this Ethics Alert, which will discuss the Board of Governor’s review of potential revisions to Florida Bar Rules 4-7.13, which would prohibit misleading words and phrases in Google ad words, and revisions to Florida Bar Rule 4-1.5(h), which would permit lawyers to charge a client the actual cost of accepting a credit payment.

The Bar Board of Governor’s backup materials regarding proposed revised Bar Rule 4-1.5(h) indicate that the basis for the proposed rule change is a potential allegation of an improper restraint of trade in violation of the Sherman Antitrust Act.

The Bar’s recent summaries of the proposed rule revisions and their status in the BOG review process are below.

PROPOSED ADVERTISING RULE CHANGES 

The Board Review Committee on Professional Ethics will be considering a request for a rule amendment (to Rule 4-7.13) that would state it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the Internet or other media, including directly or through a group advertising program. For example, the proposal would ban the purchase of another lawyer’s name in Google ad words. The Board’s Citizens Advisory Committee also supports the amendment, stating that the practice is misleading, particularly to vulnerable consumers. 

FINAL ACTION ON CREDIT SERVICE CHARGES 

The Board will be taking final action on a proposed rule change that would delete the current prohibition against charging a service charge for client’s use of a credit plan and allow lawyers to charge the actual charge imposed on the lawyer by the credit plan. Rule 4-1.5(h) currently permits lawyers to accept credit cards to pay for fees and costs, but prohibits lawyers from charging the client the credit card fee charged to the lawyer as a vendor.

Bottom line:  Proposed revised Rule 4-7.13, which would prohibit misleading Google ad words, would be consistent with other jurisdictions that have considered the issue.  Proposed revised Rule 4-1.5(h), which would permit a lawyer to require the client to pay the actual credit card charges would reverse the prior rule, which specifically prohibited requiring the client to pay such merchant charges.

Stay tuned and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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U.S. DOJ files Statement in TIKD in federal lawsuit arguing that Florida Bar is not immune from Sherman antitrust allegations

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 12, 2018) Statement of Interest filed by the United States Department of Justice arguing that The Florida Bar is not immune or exempt from antitrust under the Sherman Antitrust Act based upon the U.S. Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division).  The Statement of Interest is available on the PACER federal document system here:  https://www.pacer.gov/login.html (subscription required).

As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017.  The TIKD app allows an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee and TIKD retains an attorney to represent that individual.  If the individual receives points against his or her license, TIKD refunds the payment and pays the cost of the ticket.  The business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by the individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of Florida Bar disciplinary rules, including fee splitting and interference with the lawyer’s independent professional judgment.  A complaint was filed with The Florida Bar by members of the law firm alleging that TIKD was engaging in the unauthorized practice of law (UPL).  That complaint is currently pending and the Bar has recommended further proceedings.

TIKD then filed the federal lawsuit court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals.  According to the federal Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story and a few months later, attorneys with The Ticket Clinic threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.

A state lawsuit was filed and was settled; however, TIKD alleges in the federal Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.

A recent (February 21, 2018) Motion for Sanctions filed by the Ticket Clinic law firm alleged, inter alia, that The Florida Bar has immunity, which immunized the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.

On March 12, 2018, the U.S. Department of Justice filed a statement of interest stating that The Florida Bar is not immune from federal or state antitrust liability under the Sherman Act as an arm of the state based upon the U.S. Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  According to the statement:

“The Florida Bar defendants assert, as one ground for their motion to dismiss, that they are entitled to protection against Sherman Act claims by the state-action doctrine of Parker v. Brown, 317 U.S. 341 (1943), without having to satisfy either the “clear articulation” or “active supervision” requirements of that doctrine. That position is incorrect. The Supreme Court’s most recent state-action decision, N. Carolina State Bd. of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), clarified the state-action doctrine with respect to state agencies that regulate learned professions. It requires that the Bar, if “controlled by active market participants,” id. at 1114, must satisfy the clear articulation and active supervision requirements in order to obtain state-action protection.”

Bottom line:  As I have previously blogged, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The Statement of Interest filed by the U.S. Department of Justice agrees with that analysis and argues that it is correct.  Stay tuned…

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Startup app TIKD sues Florida Bar for alleged antitrust violations; Florida Bar moves to disqualify former president from case

Hello everyone and welcome to this Ethics Alert which will discuss the recent lawsuit filed by Startup app TIKD Services against The Florida Bar and the Ticket Clinic law firm for, inter alia, antitrust violations and the Bar’s Motion to Disqualify its former president, Ramón A. Abadin from representing TIKD, claiming that he was privy to privileged and confidential communications and information related to the matter.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court Southern District of Florida-Miami Division).

The owner of the company, Chris Riley, says he got the idea for TIKD after he received a speeding ticket in Miami and had to pay a lawyer and was assessed fines and costs.  He then came up with an app to help motorists challenge their tickets without having to go to court.  The app permits the ticketed person to upload a photo of the ticket and pay a fixed amount.  TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by an individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment.  TIKD states that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”

TIKD subsequently filed a lawsuit in federal court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The lawyers representing TIKD include Ramón A. Abadin, a recent former President of the Florida Bar.  The defendants include, among others, The Florida Bar and attorney Mark S. Good, who founded The Ticket Clinic; which has offices in Florida, Georgia and California.

According to the federal lawsuit, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story.  A few months later, attorneys with The Ticket Clinic, a Miami law firm that handles traffic tickets, threatened to report two of TIKD’s lawyers to the Bar if they continued to work with TIKD.  Litigation was later filed and the parties reached a settlement last August; however, TIKD alleges that the Bar and the Miami lawyer firm continued a “concerted effort” to put it out of business and that Ticket Clinic lawyers continued filing “baseless ethics complaints” against attorneys represent TIKD customers.

On December 1, 2017, The Florida Bar filed a Motion to Disqualify Ramón A. Abadin alleging that, during his 2015-16 term as president, he “was provided attorney-client and attorney work-product communications and advice about and involving the specific antitrust issues and allegations asserted in this action”, including an amicus brief that was filed in the U.S. Supreme Court case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015).  In that opinion, the U.S. Supreme Court found that the N.C. dental board did not have state action immunity because its decisions were final and not subject to review. The Florida Bar joined in an amicus brief in that case arguing state action immunity should apply.

Bottom line:  This appears to be the one of the first cases filed in Florida which directly alleges that The Florida Bar’s procedures violate the Sherman Antitrust Act based upon the decision of the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  As an added element of intrigue, the Bar’s very recent former president was among the lawyers filing the complaint and the Bar has filed a motion to disqualify him from the matter.

Stay tuned…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Bar antitrust, Bar regulation and antitrust, BAR UPL antitrust, Florida Bar, Florida Bar TIKD antitrust lawsuit, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer ethics, Lawyer Ethics and Professionalism, North Carolina Dental Board, North Carolina dental whitening case and UPL, UPL and professional speech, UPL North Carolina federal judge opinion on regulation of UPL

Online mechanic’s lien settlement software company Zlien settles Ohio unauthorized practice of law complaint

Hello and welcome to this Ethics Alert blog which will discuss the recent (July 20, 2016) Order approving the settlement of an Ohio unauthorized practice of law (UPL) complaint filed by the Cleveland Metropolitan Bar Association (CMBA) against an online mechanic’s lien settlement software maker called Express Lien, Inc. (d/b/a Zlien) and dismissing the complaint.  The case is Cleveland Metropolitan Bar Association v. Express Lien, Inc. dba Zlien et al, case number Case No. UPL 15-01.  The Ohio Supreme Court UPL Board’s Order approving the settlement and dismissing the complaint is here:  http://www.supremecourt.ohio.gov/Boards/UPL/settlement/UPL15-01.pdf

The CMBA filed the UPL complaint in May 2015 against Express Lien Inc. (Zlien) alleging that it was enabling non-lawyers to practice law in Ohio.  Zlien claimed that its platform streamlined the process of filing lien documents by facilitating the filing of those documents by its users and that it was not engaging in or enabling UPL.

According to the Order, the UPL complaint alleged that Zlien was illegally practicing law when Zlien “Director of Client Experience” Gretchen Lynn allegedly prepared, signed and attempted to file a lien against an Ohio property on behalf of Midwest Interiors LLC. The complaint stated that Ms. Lynn was not a lawyer in Ohio and Zlien was not registered with the Ohio Secretary of State.

The Cuyahoga County Fiscal Office rejected the lien because it was filed 33 days past the 75-day window to file.  The CMBA then initiated an investigation which led to the filing of the complaint.  Zlien stated that the affidavit was completed using aggregated information and it is “a technology powered scrivener” that “merely copies verbatim” user provided information.

In response to the UPL complaint, Zlien file a lawsuit in Louisiana federal court in July 2015 against the CMBA, the Ohio State Bar Association, and other entities and individuals alleging, inter alia, that the Bar was attempting to unconstitutionally restrict commercial or political speech and engaging in unfair trade and competition practices in applying and enforcing Ohio’s UPL statutes.  Zlien’s federal lawsuit is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/express_lien_complaint.authcheckdam.pdf

Zlien’s federal complaint cited to the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners which struck down the enforcement of regulations by North Carolina’s dental board, which had attempted to prohibit teeth whitening by non-dentists.  In that case, the Supreme Court stated that the regulation of a profession by licensees in the same profession violated federal antitrust laws.

The UPL settlement agreement states that Zlien has agreed not to sign any mechanic’s lien affidavits unless it is a party or can practice law in the jurisdiction.  The company also agreed not to select the property descriptions inserted in lien affidavits or advise customers on which property descriptions to use.  Zlien also agreed to require its users to sign generated lien documents themselves rather than appointing the company to sign for them through power of attorney.

Zlien issued a public statement through its chief legal officer related to the settlement: “Technology has advanced to the point where it can put groups that change at a slower pace – like bar associations – in unfamiliar and potentially uncomfortable situations.” “Software can’t practice law, and people still need lawyers for certain tasks, but things that technology can do are not the things for which lawyers are required.”

Bottom line:  This is more fallout from the U.S. Supreme Court’s 2015 North Carolina dental whitening decision and also involves an online legal document generator/provider. The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015) and the opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  My Ethics Alert blog discussing the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/  and a recent list of other cases which have been filed after that decision is here:  https://media.nasba.org/files/2015/12/2016-0714-Board-Immunity-Cases-Table.pdf

Stay tuned and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Non-lawyer practicing law, North Carolina Dental Board, North Carolina dental whitening case and UPL, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit, Zlien UPL lawsuit and settlement

Washington State Bar suspends some ethics opinions because of antitrust concerns arising from 2015 U.S. Supreme Court opinion

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!

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under .S. Supreme Court, Attorney Ethics, Bar antitrust, BAR UPL antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer ethics, LegalZoom, LegalZoom antitrust, North Carolina Dental Board, Uncategorized

LegalZoom settles multi-million dollar antitrust suit against the North Carolina State Bar with agreement to continue operating

Hello everyone and welcome to this Ethics Alert which will discuss the recent agreement between LegalZoom and the North Carolina State Bar which will apparently settle its multi-million dollar antitrust lawsuit which was filed in the North Carolina Middle District in June 2015.  The agreement has certain conditions and would allow LegalZoom to continue operating in that state.  My Ethics Alert blog discussing the federal antitrust lawsuit is here:  https://jcorsmeier.wordpress.com/2015/06/24/legalzoom-files-federal-antitrust-lawsuit-against-the-north-carolina-state-bar-citing-2015-ussc-dental-board-case/

LegalZoom filed the antitrust lawsuit in June 2015 seeking $10.5 million in damages for the alleged antitrust violations and based on the recent U.S. Supreme Court opinion which struck down the enforcement of regulations by North Carolina’s dental board, which attempted to prohibit teeth whitening by non-dentists.  In that case, the U.S. Supreme Court stated that the regulation of a profession by licensees in the same profession violated antitrust regulations.  The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015).  That opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf and my Ethics Alert blog on the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/

According to media reports, LegalZoom and the North Carolina State Bar have agreed to settle the pending antitrust lawsuit.  Under the terms of the settlement, LegalZoom will agree to have its documents reviewed by North Carolina lawyers and inform its customers that the blank templates are not a substitute for advice from an attorney. The North Carolina State Bar also agreed to allow LegalZoom to continue to operate in the state and to support proposed legislation designed to clarify the definition of the “unauthorized practice of law”. Both parties agreed to support pending legislation permitting interactive legal-help websites if the websites abide by the basic terms of the settlement agreement.

The North Carolina State Bar had criticized and fought LegalZoom’s activities since 2008, although the company had been approved to operate in the state in 2003.  Legal challenges to LegalZoom’s activities have either ended or are not being pursued in other states and the North Carolina effort was the only ongoing effort to change LegalZoom’s business model.  According to reports, LegalZoom states that the agreement is on the same terms that it proposed in 2011 but the Bar refused the offer.

According to an article in the ABA Journal in 2014, LegalZoom is planning to offer more services to consumers and small businesses, including routine legal advice using both lawyers and non-lawyers.  According a LegalZoom news release, the company is increasing its services to include prepaid legal service plans in various states in addition to preparation of online documents, and it also plans to launch more services in North Carolina and other states this year.

Bottom line:  If this settlement is approved, it would appear to be a victory for LegalZoom and its activities, with certain modifications, including the requirement that its documents be reviewed by lawyers and that it informs its customers that the blank templates are not a substitute for obtaining advice from an attorney.  We will see how this plays out in North Carolina and in the other states and jurisdictions, including Florida.

Be careful out there.

Disclaimer:  this blog is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Bar antitrust, BAR UPL antitrust, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Unauthorized practice of law, Unlicensed practice of law, Unlicensed practice of law antitrust lawsuit

LegalZoom files federal antitrust lawsuit against the North Carolina State Bar citing 2015 USSC dental board case

Hello everyone and welcome to this Ethics Alert which will discuss the recent antitrust lawsuit filed on June 3, 2015 by LegalZoom against the North Carolina State Bar alleging antitrust violations.  The case is LegalZoom.com, Inc. v. North Carolina State Bar, et al, (U.S. Middle District, North Carolina) Case No.: 1:15-CV-439.  The formal Complaint (WSJ link) is at http://online.wsj.com/public/resources/documents/2015_0604_legalzoom.pdf.

The Complaint was filed on June 3, 2015 and seeks injunctive relief for antitrust violations as well as damages, claiming that the North Carolina State Bar is has “engaged in unauthorized and anticompetitive conduct illegally and unreasonably restraining trade in the Relevant Market” by prohibiting LegalZoom from offering prepaid legal services plans in that state.  As support for the claims, the Complaint cites a recent U.S. Supreme Court decision on the prohibition of non-dentists from providing teeth whitening services in North Carolina.

According to the Complaint, in 1991, the North Carolina state legislature “removed from the State Bar any power over prior and continuing approval of prepaid legal services plans, leaving to the State Bar only the ministerial task of keeping a registration list of plans sold in North Carolina.  The State Bar, however, defied the Legislature. Over time, the State Bar unilaterally and ultra vires reassumed and exercised the power the Legislature had removed. The State Bar adopted – without legislative authority or active State supervision – a restrictive definition of what constitutes a prepaid legal services plan, and then began to refuse to ‘accept’ for registration plans that purportedly did not meet its own definition, excluding those plan providers from the Relevant Market.”  The Complaint states that the Bar rules require the prepaid plans to be paid in advance of any immediate need, and any legal services provided must be provided by lawyers licensed in the state.

In support of the allegations, the Complaint cites the February 2015 U.S. Supreme Court decision North Carolina State Board of Dental Examiners v. Federal Trade Commission, which is here: http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.  The North Carolina State Board of Dental Examiners opinion held that a dental regulatory board made up mostly of dentists does not have state-action immunity in an antitrust action and authorized a Federal Trade Commission challenge to the dental board’s prohibition of the provision of teeth whitening services by non-dentists.  The opinion also found that when a state board is controlled by market participants in the occupation that it regulates, state-action antitrust immunity does not accrue unless the restraint of trade that is being challenged is affirmatively expressed as state policy and the policy is actively supervised by the state.

Bottom line: It should be very interesting to watch this case unfold.  When the USSC opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission was rendered on February 25, 2015, there was much analysis/commentary in the media regarding the potential vulnerability of state Bars to an antitrust challenge if it could be shown that they were controlled by market participants (lawyers) in the occupation being regulated (the law).  This appears to be the first shot across the bow.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Bar antitrust, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, LegalZoom, LegalZoom antitrust