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...."
Comments?
