After recently being part of a focus group for a Bar, part of a strategic planning process, I have some thoughts that might be helpful for bars entering into this process.
Since the US Supreme Court case of North Carolina Board of Dental Examiners v. Federal Trade Commission, it is clear that exemption from anti-trust challenge only applies for a bar if a self-regulating profession is actively supervised by a true state agency. This is necessary to ensure that protection of the public interest.
In my view, for unitary bars, in which all admitted lawyers must be members, and in which the bar regulates and disciplines, this means that if they fail to structure their strategic planning process around the needs of the public, they may be subjecting themselves to anti-trust scrutiny and to losing the state action exemption on which many such groups have relied.
So, to the extent that a bar makes it clear that its decision-making is driven by other than the public interest, that may be viewed as evidence of lack of active supervision by a public-interest driven true state entity, and cause the anti-trust exemption to fall — something that should be terrifying in this age of challenges to the lawyer monopoly as currently structured.
While non-unitary, non-self-regulating bars do not face exactly this set of risks, they do nonetheless need to make sure that their strategic planning is seen by the public as being driven by an analysis of the public interest. If they fail to do so, they risk challenges to the structures of regulation and monopoly, and with good reason.
How might a bar structure strategic planning to meet these goals:
- Finding out what the public actually wants from the profession — look here for some work on public attitudes to the system, with a focus on legal aid, broadly defined.
- Looking at the actual public interest problems with the legal system
- Looking at the potential role of the organized bar in overcoming these problems
- Studying whether the current definitions of limitations upon practice are appropriate in an era of far greater client knowledge and availability of information and tools, including over the Internet. (See New York State Bar flexibility here.)
- Looking at alterantive structures of ownership, and how to combine the advantages of flexibility with the need to protect the public interest against certain of the pernicious impacts of commercialism.
Other suggestions please?
Many others will surely come from the broad inquiry being entered into by the ABA Commission on the Future of Legal Services.
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