. Legal ethics

Not all bar associations are created equal

One interesting difference among jurisdictions in the U.S. as to the regulation of lawyers involves whether a particular state has an unified bar association structure or not.  A state like North Carolina operates under such a structure.  Every lawyer that obtains a license to practice in North Carolina is a member of the state bar association, and it is the state bar association that has the responsibility for regulation of lawyer conduct.  The North Carolina State Bar Association is an actual state agency.  Thus, when you hear of a lawyer in North Carolina who has been elected to serve as President of the state bar association, that person is truly a public official in addition to being a private lawyer.  So too, lawyers who end up elected and serving on bodies such as the Board of Governors in such a state.  While, in all states, we commonly refer to law as being a “self-regulating” profession, it is undeniably true in jurisdictions with an unified bar.

In Tennessee, though we are just next door to North Carolina, we have a different set up altogether.  The Tennessee  Bar Association is a purely voluntary membership organization.  Upon being granted your license in Tennessee, you are certainly admitted to the bar, but you get to choose whether or not to join the Tennessee Bar Association.  The responsibility for regulation of lawyer conduct does not fall on the bar association in our state.  Instead, we have a different organization which is responsible for regulating lawyer conduct and pursuing professional discipline against Tennessee attorneys, the Board of Professional Responsibility.  The BPR is an arm of the Tennessee Supreme Court and its employees, including disciplinary counsel, are government employees and public officials.

Tennessee’s approach is a topic I frequently find myself educating one person at a time about, because as Chair of the TBA Standing Committee on Ethics and Professional Responsibility (who also happens to be a member of the Board of Governors of the TBA), I get communications directed to me by unhappy consumers of legal services who may be under the mistaken impression that my status is something like a disciplinary counsel or that I otherwise have responsibility for pursuing discipline against lawyers.

When I get such inquiries, I do my best to let them know their mistake, stressing that a part of my practice involves defending lawyers against such complaints, and providing them with contact information for the regulatory agency in Tennessee, the BPR.  Though I am admittedly quite self-interested, I’ve always considered Tennessee’s approach to be more sound.

So why all the lengthy discourse on the topic here?  Well, not only in hopes that this might educate more than one person at a time who might otherwise communicate with me under such a mistaken premise, but moreover because we live in interesting times now for lawyers in unified bar states like North Carolina.

Earlier this year, the U.S. Supreme Court ruled that an antitrust suit over regulation of non-dentists offering teeth-whitening services could move forward because the members of the N.C. Board of Dentistry (dominated by practicing dentists) were not entitled to state-action immunity.  Lawyers practicing in states with unified bars — particularly those in bar leadership positions – have had real reason to wonder when shoes might begin dropping over an array of aspects of the regulation of the practice of law that appear anti-competitive.  In North Carolina, that shoe hit last week when Legal Zoom filed an antitrust suit in federal court against the North Carolina State Bar, naming the President, two Deputy Counsel for the NCSB, and the chair of its Authorized Practice Committee as additional defendants.  The complaint makes for a fascinating read and, to an outsider, it certainly sounds like a thorny problem for the NCSB to deal with.

Who knows what the outcome of the suit will be in the end, but Legal Zoom’s complaint will likely be a road map for similar lawsuits in other states against those responsible for regulation of the practice of law.  Depending on the underlying issue, Tennessee bar regulators may or may not be targeted with such a suit.  Given how different our structure is from North Carolina, I would suspect proving that the BPR is actively supervised by the state would be an easier endeavor in Tennessee, despite the existence of active market participants on the BPR.

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