Maybe you remember the North Carolina Dental Board case, decided by the Supreme Court earlier this year? Sure, it’s no Hobby Lobby, or Citizens United, or Obergefell – it’s not likely to cause teeth-gnashing or dancing in the streets, depending on one’s perspective. But the case may end up being even more important to lawyers than it is to dentists, who lost a skirmish with mall-kiosk tooth-whiteners when the Supreme Court ruled against them.
At its most basic, the Dental Board case calls into question the ongoing viability of anti-competitive, unsupervised lawyer regulatory committees – such as the advertising review committees that persist, strangely, in places like Florida. But it may end up meaning more, as the percolating tension between occupational licensing and the first amendment continues to develop.
The ABA, at least, seems to be paying some attention: they’ve created this page tracking developments in case law and commentary following the North Carolina Dental Board decision. If this topic interests you as much as it does me, you’ll want to follow along.
Just as an interesting aside, the University of San Diego group has been trying to challenge how the California State Bar is regulated as well, but their challenge falls short due. The Fellmeths are very intelligent individuals, so I wonder how much of this is a deliberate choice to ignore how the California Bar operates. Someone from their organization shows up for each one of our main Board meetings, so they know exactly how the California Bar operates as part of the judicial branch in California. More specifically, they know that no rule or policy of any significance can be implemented without approval by the California Supreme Court or adoption of actual legislation by the California Legislature. The State Bar recommends candidates for admission to the Bar and for disbarment, and it is the California Supreme Court that makes the decision. We are but an administrative arm of the Court.
Another good example is our recent vote to shorten the Bar exam in California to 2 days from 3 days, a vote taken at our July Board meeting. This is only a recommendation we need to present to the Supreme Court for consideration and approval. It was studied and proposed to the Board of Trustees by the Committee of Bar Examiners, who did all the heavy lifting on this issue. We, as a Board, made a policy decision at the State Bar level. However, it is the California Supreme Court that makes the ultimate decision on this.
There are also examples that require legislative oversight. We must go to the State Legislature every single year to get approval to set our licensee fee (which is misleadingly referred to as our “dues bill”). Thus, the Legislature has complete control over the State Bar’s general operating fund just as it does over the judicial branch’s budget generally speaking. Any matter within the Business and Professions Code involving attorneys must go Legislative approval to be changed. The MCLE requirements for attorneys is a good example. We cannot increase or decrease those without Legislative approval because this is set by the Business and Professions Code. The Legislature also controls the State Bar governance structure (who sits on the Board of Trustees and the terms allowed) and created the State Bar’s statutory public protection mission.
Overall, the State Bar of California, which is an administrative arm of the California Supreme Court, has very little autonomy and does not have the antitrust issues raised by the NC Dental Board case. The CA State Bar does not attempt to regulate paralegals or any other non-practitioners. If it receives complaints about the unauthorized practice of law, the only complaints it has the jurisdiction to handle are those involving individuals who are or have been licensed by the California State Bar. All others are referred to other law enforcement agencies within the State of California, with whom the State Bar of California cooperates on a regular basis. There is, however, very little concern by the California State Bar regarding the NC Dental Board case given the regular and very active oversight that both the California Supreme Court and the California Legislature have with respect to California State Bar activities.
First sentence should read “challenge falls short due to the active oversight engaged in by the California Supreme Court.” Don’t know how that was deleted, but I was unable to go back and edit it.
I still got your meaning, Joanna, and you made great points.