Bar should review antitrust implications of dental board ruling

The implications for the State Bar of the U.S. Supreme Court’s 6-3 Feb. 25 Dental Examiners decision (North Carolina St. Bd. of Dental Examiners v. FTC, 574 U. S. ____ (2015)), although declared “cosmic” by some commentators, are actually less concerning than may appear.

The most radical position taken assumes that the bar’s ability to license and discipline, coupled with its majority governance by lawyers, amounts to a restraint of trade under Dental Examiners.

The key modulating factor is that long-time bugaboo of bar finances, Keller v. State Bar of California, 496 U.S. 1, 16 (1990). Keller, in the context of the First Amendment, finds a bright-line division between fundamental functions of the bar, based on the California Constitution, and other activities directly related to admissions, membership and retention of members.

Thus, under Dental Examiners, the fundamental admissions, membership, and retention functions either amount to partial sovereign status for the bar or non-sovereign status under the close supervision of the Supreme Court. Either confers antitrust immunity.

However, as in Keller, the problematic issues arise from “other” activities. For example, outreach education to non-lawyers, say, in the form of free pamphlets, may create problems depending on their subject. Pamphlets outlining ethical behavior of lawyers and the discipline process represent an activity subservient to admissions, membership, and retention of members, while, speaking hypothetically, pamphlets outlining availability of marriage counseling move away from these core functions.

Therefore, the bar should be proactive in reviewing Dental Examiners and its implications for modification of bar programs.

James Ching
Sacramento

No proof that more MCLE improves legal services

Despite the increasing acceptance of Minimum Continuing Legal Education (MCLE), and the increasing hourly obligations among the various states that have an MCLE requirement - and in California in particular - what objective evidence (not simply opinion, even from so-called experts) exists that any amount of MCLE actually improves the quality of legal services, and/or reduces the number of complaints against attorneys that lead to discipline at any level? I lack comparative data, but it seems that California's reputedly tough bar exam and discipline programs combine to identify those who actually practice but need more "education," without burdening those who do not have such a need with a requirement.

The bottom line: Why is there a requirement in the first place? Are the hours and increased hours intended to or even needed to improve legal services? Do they do so? Would increasing hours do anything, or is MCLE a provider of sustenance to what has become an ingrained industry? Is the proposed increase a boost for that industry by way of administrative fiat, and where did the influence for the proposal arise?

Brian Aherne
Los Angeles