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U.S. Supreme Court

SCOTUS accepts teeth-whitening case; could decision impair state bars’ ability to regulate lawyers?

Posted Mar 3, 2014 10:41 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court has accepted a challenge to the antitrust power of the Federal Trade Commission against a state dentistry board that could have implications for state bar associations, according to an amicus brief.

The issue arose after the North Carolina Board of Dental Examiners sent cease-and-desist orders to people performing teeth-whitening services without a dental license, according to the cert petition (PDF). The FTC found that the board, comprised primarily of dentists, acted in restraint of trade and ordered it to stop sending the cease-and-desist letters. The Richmond, Va.-based 4th U.S. Circuit Court of Appeals upheld the FTC’s authority.

At issue in the case is whether the FTC can treat the North Carolina board as a private actor not entitled to the state-action exemption from antitrust law because a majority of the board’s members are market participants who are elected by other market participants.

The amicus brief (PDF) filed by the North Carolina State Bar argues that the 4th Circuit decision upholding the FTC’s power could affect state bars’ power to regulate lawyer ethics and the unlicensed practice of law. “Under the 4th Circuit’s decision,” the amicus brief says, "the state bar and its councilors will face antitrust claims asserted by disgruntled lawyers and by nonlawyers whose conduct constitutes the unauthorized practice of law.”

The amicus brief was also joined by the West Virginia State Bar, The Florida Bar, and the North Carolina Board of Law Examiners. They argue the 4th Circuit decision “threatens an important and sovereign state interest: the choice by a state to regulate state-licensed professionals by state bodies composed primarily of those practicing the same profession.”

Hat tip to SCOTUSblog, which links to the briefs on this case page.

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