What do legal document preparers and teeth whitening technicians have in common?

More than you might think.

The U.S. Supreme Court released an opinion on February 25, 2015 - NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, PETITIONER v. FEDERAL TRADE COMMISSION - 574 U. S. ____ (2015) ruling in favor of non-dentists and against dentists and their coercive tactics to restrict trade.

North Carolina dentists took exception to upstart Teeth Whitening Services offering teeth whitening to consumers at a lower cost than offered by dentists. North Carolina dentists are regulated by the Board of Dental Examiners, which is made up of - you guessed it - mostly dentists. Are you starting to see the correlation? The Florida Bar regulates attorneys and is made up of Florida attorneys. Anyway, the dentists took to sending the Teeth Whitening Services threatening letters, including cease and desist letters, and threats of criminal punishment for their teeth whitening activities. Sound absurd? It is, and we live it.

We, as Florida legal document preparers, live under the constant threat of coercive threats from the Florida Bar UPL Committees targeting document preparers with unsupported allegations of the unlicensed practice of law (UPL). And although, the Florida Bar UPL Committees try their best to frame their investigations as protective of potential consumer harm - no dice. Members of the Florida Bar UPL Committees and some Florida attorneys would just as soon document preparers would all disappear and go away forever. Since that is unlikely to happen, instead, they "investigate" the potential harm that document preparers pose. The telling point is that there doesn't need to be any allegation of consumer harm to trigger an investigation. And there is no definition of the practice of law to begin with. So how can anyone be accused of the unauthorized practice of law, when the practice has never been defined. A UPL investigation can cost a document preparer thousands in legal fees; threats of jail; curtailment of freedom of speech (by the way commercial speech is protected as free speech); and administrative fines imposed as a stipulated settlement when the UPL Committee finally drops their investigation.

And above all, these UPL witch hunts damage consumers. Florida legal document preparers are harassed, sometimes to the point of closing their businesses, due to the unfounded investigations and threats of fines and jail time. Document preparers provide a valuable service to consumers who either cannot afford; or do not choose to afford attorney fees. Without document preparers, many consumers would go without any legal help as financially out of reach. Without document preparers many consumers would not be able to divorce; modify their child support; sue in small claims; or any number of things that document preparers can help with.

Following are excerpts from the Supreme Court opinion:

"Starting in 2006, the Board issued at least 47 cease-and desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers. Many of those letters directed the recipient to cease “all activity constituting the practice of dentistry”; warned that the unlicensed practice of dentistry is a crime; and strongly implied (or expressly stated) that teeth whitening constitutes “the practice of dentistry.” App. 13, 15. In early 2007, the Board persuaded the North Carolina Board of Cosmetic Art Examiners to warn cosmetologists against providing teeth whitening services. Later that year, the Board sent letters to mall operators, stating that kiosk teeth whiteners were violating the Dental Practice Act and advising that the malls consider expelling violators from their premises...."

and:

"...[T]he ALJ [Administrative Law Judge] conducted a hearing on the merits and determined the Board had unreasonably restrained trade in violation of antitrust law. On appeal, the FTC again sustained the ALJ. The FTC rejected the Board’s public safety justification, noting, inter alia, “a wealth of evidence . . . suggesting that non-dentist provided teeth whitening is a safe cosmetic procedure.” ..."

and

"...When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest...."

and

"...By statute, North Carolina delegates control over the practice of dentistry to the Board. The Act, however, says nothing about teeth whitening, a practice that did not exist when it was passed. After receiving complaints from other dentists about the nondentists’ cheaper services, the Board’s dentist members—some of whom offered whitening services—acted to expel the dentists’ competitors from the market. In so doing the Board relied upon cease-and desist letters threatening criminal liability, rather than any of the powers at its disposal that would invoke oversight by a politically accountable official.... "

"...The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies...."

You can read the full opinion here.

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