Legal Ethics

Washington State Bar suspends some ethics opinions because of antitrust concerns

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The Washington State Bar Association has directed its ethics committee to stop issuing ethics opinions that could be interpreted as having a restraint on trade in the legal services market.

Debra Carnes, the bar’s chief communications officer, says the move is temporary, according to the ABA BNA Lawyers’ Manual on Professional Conduct. The bar suspended the opinions so it could “proceed very deliberately” in the wake of the U.S. Supreme Court’s ruling in a case involving teeth whitening, Carnes told the publication.

The February decision allowed an antitrust action against a state dentistry board for its clampdown on nondentists who whiten teeth. The court said that when a state board is controlled by active market participants in the market it regulates, state-action antitrust immunity can’t be invoked unless the challenged restraint of trade is affirmatively expressed by state policy, and the policy is actively supervised by the state.

The decision is North Carolina State Board of Dental Examiners v. Federal Trade Commission.

Related articles:

ABA Journal: “Dental board ruling may drill into state bar associations’ immunity” “State bars may be affected by SCOTUS antitrust case; public interest groups want review by state AGs”

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