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ABA Violates Antitrust Consent Decree:

In case you missed it, here's yesterday's DOJ press release regarding the ABA's antitrust consent decree:

JUSTICE DEPARTMENT ASKS COURT TO HOLD AMERICAN BAR ASSOCIATION IN CIVIL CONTEMPT

ABA Acknowledges Consent Decree Violations and Agrees to Pay $185,000

WASHINGTON -- The Department of Justice filed a petition today asking the U.S. District Court for the District of Columbia to hold the American Bar Association (ABA) in civil contempt for violating multiple provisions of a 1996 antitrust consent decree. The consent decree prohibited the ABA from misusing the law school accreditation process. The Department also filed a proposed order and a stipulation in which the ABA acknowledges the violations alleged in the Department's petition and agrees to reimburse the United States $185,000 in fees and costs incurred in the Department's investigation. The proposed order is subject to court approval.

"The Antitrust Division takes compliance with court decrees very seriously," said Thomas O. Barnett, Assistant Attorney General in charge of the Department's Antitrust Division. "No one is above the law and those who do not comply with their obligations under court orders must be prepared to face consequences."

In June 1995, the Department filed an antitrust lawsuit against the ABA in U.S. District Court for the District of Columbia. In its complaint, the Department alleged that the ABA had allowed its law school accreditation process to be misused by law school personnel with a direct economic interest in the outcome of accreditation reviews, resulting in anticompetitive conduct. In 1996, the court entered an agreed-upon final judgment prohibiting the ABA from fixing faculty salaries and compensation, boycotting state-accredited law schools by restricting the ability of their students and graduates to enroll in ABA-approved schools, and boycotting for-profit law schools. The final judgment also established the framework of structural reforms and compliance obligations that are the subject of today's filing.

According to today's petition, and as acknowledged by the ABA, the ABA violated six structural and compliance provisions in the 1996 consent decree on one or more occasions. Those provisions included requirements that the ABA:

Annually certify to the court and the United States that it has complied with the terms of the final judgment;

Provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's Council of the Section of Legal Education and Admissions to the Bar;

Provide briefings to certain ABA staff and volunteers concerning the meaning and requirements of the decree;

Obtain annual certifications from certain ABA staff and volunteers that they agree to abide by the decree and are not aware of any violations;

Ensure that no more than half of the membership of the ABA's Standards Review Committee be comprised of law school faculty; and

Include on the on-site evaluation teams, to the extent reasonably feasible, a university administrator who is not a law school dean or faculty member. The ABA is a national professional association for lawyers headquartered in Chicago. The ABA's Council of the Section of Legal Education and Admissions to the Bar is the only national accrediting body for law schools.

Bpbatista (mail):
The ABA is just another corrupt, liberal institution that uses its authority to bully its competitors and those who disagree with it. Par for the course on the left.
6.24.2006 2:01pm
therut:
This is funny. Even the great estemed ABA the people of integrity of the so called legal system is found to be corrupt.
6.24.2006 2:27pm
Truth Seeker:
So can we now stop considering their ratings of judicial nominees?
6.24.2006 2:38pm
Cornellian (mail):
Looks like they finally found a way to make conservatives into big fans of antitrust enforcement.
6.24.2006 3:19pm
Dave Hardy (mail) (www):
About time.

I always had problems with the idea of accreditation to begin with. A state has a licensed profession. OK. It requires applicants to pass a test. OK. But first they must graduate with a particular degree. Well... maybe OK. And the degree must come from a school that a purely private body certifies, that body being one not bound by due process or anything like that, has no accountability to voters, and in which the majority of the profession are not members. That gives me major heartburn.
6.24.2006 5:21pm
John Burgess (mail) (www):
Well, just about every accrediting body, from community colleges to medicine and architecture, fit the definition of "unaccountable to the voters". Perhaps there is one--Regents of NY, maybe?--but that's about all I can think of.

The problem isn't the use of the power of accredition, it's the abuse of the power of accreditation....
6.24.2006 5:47pm
Kevin P. (mail):
Maybe the problem is with licensing of professions to begin with. I see no reason why the free market and the tort system cannot determine who succeeds and who fails.
6.24.2006 6:05pm
Medis:
Although I would love to see the DOJ stick it to the ABA even more, those look like relatively minor, and relatively nonsubstantive, violations of the consent decree (and obviously $185,000 isn't a huge penalty). So, while of course I think the DOJ is right to require full compliance with the consent decree, I don't think they are about to bring down the ABA.
6.24.2006 6:26pm
Bruce Hayden (mail) (www):
But I still don't see the logical justification for allowing the ABA to control admission to the bar in so many states. As pointed out above, it doesn't represent even a majority of the legal profession - and it sure doesn't represent me.
6.24.2006 6:28pm
Jim Rhoads (mail):
I note the litigation was started during the Clinton Administration.

Interesting.
6.24.2006 7:15pm
Cornellian (mail):
The logic of a state going with ABA accreditation is that it's cheap. The ABA accredits and you, the state authority, don't have to do anything. If you didn't go with the ABA you'd have to come up with your own criteria and hire a battery of inspectors to enforce it. I don't think states care alll that much about the nuances of ABA accreditation, they just don't want to spend the money to do it themselves. It's fine to say a state should dump the ABA and go with something else but you have to say what the "something else" is. And if you say just let any fly-by-night outfit call itself a law school and issue JD's that make one eligible to take the bar exam, then you get points for libertarian purity but will persuade exactly zero state governments to abandon the ABA.
6.24.2006 7:19pm
PaulV (mail):
We need the ABA to restrict entry into profession to keep our fees from being undercut.
There must be a connection with the ABA backing away from it's proposals that it would require law schools to violate laws concerning goals for minority applicants
6.24.2006 8:03pm
Beerslurpy (mail) (www):
The affirmative action rules help to limit the number of lawyers by reserving slots for people that finish law school at a lower rate than the general population (because the criteria for admission was race rather than academic qualification). This is good for lawyer salaries.
6.24.2006 10:59pm
Bruce Hayden (mail) (www):
I think that what Beerslurpy is saying is that the pass rate for some groups that the ABA wants to give preference to is so bad already that the net result of admitting even more of these groups is going to result in even more of them failing the bar exam, and, thus, decreasing the overall pass rate, and, thus, ultimately, reduce the number of attorneys practicing.
6.24.2006 11:37pm
MnZ (mail):
Maybe the problem is with licensing of professions to begin with. I see no reason why the free market and the tort system cannot determine who succeeds and who fails.


There are two professions with particularly strict accreditation and licensing professions - medical doctors and lawyers. I realize that medical doctors and lawyers provide important services, and it is important that they be skilled. However, there are plenty of other professions for which the same thing can be said (e.g., engineers). They seem to get along fine with much lower barriers to entry less strict standards.
6.24.2006 11:58pm
Jim T:
Accountants also have pretty strict accreditation standards, though I suppose a CPA isn't an absolute requirement for being hired.
6.25.2006 12:35am
AnonymousComment:
And if you say just let any fly-by-night outfit call itself a law school and issue JD's that make one eligible to take the bar exam, then you get points for libertarian purity but will persuade exactly zero state governments to abandon the ABA.

Granted this is true, it still leads to the question of, "why not"? If the bar exam truly does what it's supposed to, why not allow it to be the sole barrier to entry?
6.25.2006 12:55am
Dave Hardy (mail) (www):
Here in AZ we have a rather unusual situation.

Back 10-15 yrs ago, a state legislative committee set out to investigate claims that the state bar disciplinary process gave big breaks to members of major firms and those with political clout. I think it arose out of a case where a lawyer in a federal criminal case told a client he needed $10,000 more, broadly hinting that the firm had political clout (a US Senator had been a partner) and with that he could get charges reduced to a misdemeanor -- the hint was that it was for a bribe. The client later discovered that the prosecutor had offered to drop it to a misdemeanor *before* the request for additional money. So in one transaction the attorney had proposed bribery, but the proposal was a fraud on a client to boot. And nothing, of course, happened.

Anyway, the State Bar refused to comply with a legislative subpeona, and the supreme court upheld that. So the legislature simply disestablished the bar, alllowing all the statutes against unauthorized practice of law to expire. The courts can refuse to let an unlicensed person appear, but outside the courtroom they can do what they want. It's been that way for a decade.

Personally, I think the bar had it coming. On the downside, "document preparers" have sprung up to fill in forms and let the person file them pro se. Many are incompetent (I once had to wait for ten minutes while a judge tried to make handwitten changes to a draft judgment -- she finally gave up, and told the person to take it back and have the preparer redo it). Many are a bit on the shady side. A client once asked about one, giving her name, and I said he'd better think again ... she'd been disbarred for ripping off her mother's estate ... in order to pay a malpractice judgment!
6.25.2006 1:22am
Mary Katherine Day-Petrano (mail):
"If the bar exam truly does what it's supposed to, why not allow it to be the sole barrier to entry?"

A circular conclusion with no reasoning. What exactly is it "the bar exam" is "supposed to" do?

I have a question for those in the know. (And it would be great if a link to the actual consent decree could be posted). It seems to me I read in my student loan BK research somewhere that the US Dept. of Education (the United States) determines whether the ABA can be authorized to serve as accrediting agency for a State's law schools in teh first place. So why hold the ABA in contempt (other than the monetary aspect) if alls the United States has to do is yank the ABA accrediting authority thru the US DOE?

So, now I am wondering if the following part of the consent decree:

"Provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's Council of the Section of Legal Education and Admissions to the Bar"

removes authority over the standards, criteria, and testing for bar admission in the States and places such in the United States?

It seems to me (but I could be wrong), that the US DOE's authority over whether or not the ABA can serve as an accrediting agency only limits actions on the part of the ABA but does not direct (micromanage) what actions the ABA can take in terms of standards, criteria, and testing for bar admissions; whereas, the consent decree goes much farther and directs, reviews, micromanages, and dictates what the standards, criteria, and testing for the States' bar admissions programs must include.

Certainly, the US DOE is bound to enforce the Rehabilitation Act of 1973 and Titles II and III of the Americans With Disabilities Act on the States and ABA. Does the consent decree evade this enforcement obligation, and leave the remedy one under the Federal Tort Claims Act, if any?

Very curious.
6.25.2006 1:26am
eng:
Cornellian writes: "Looks like they finally found a way to make conservatives into big fans of antitrust enforcement."

I'd just like to explain why I view that remark as seriously ignorant. Anti-trust 'law' experienced a major transformation during the Reagan Administration. Through the DoJ's focus + briefs, the controlling cases are now radically different then they were before the 80s.

In particular, modern anti-trust follows a system very much motivated by Robert Bork's Opus, "The Anti-trust Paradox". The mainstream adoption of his reasoning (via the Reagan DOJ) shifted anti-trust's animus from being 'the protection of business'--as ironically it was shaped by FDR judges and often abused by competitors--into being 'the protection of the consumer'.

Modern anti-trust is a conservative creation focused on protecting the free-market.

We are long way past the era of the ALCOA decision in which (rather ironically) ALCOAs ability to manufacture aluminum at a lower cost than everyone else nearly constituted per se guilt--after all it isn't fair that you're able to sell your product cheaper than your competitor right?

That's the sort of anti-trust conservatives can't stomach: the kind meant to hobble the successful and feed the reckless and incompetent.

Modern anti-trust focused on 1) price-fixing and 2) extortion is quite firmly a conservative creation.
6.25.2006 1:37am
Mary Katherine Day-Petrano (mail):
The reason the Rehabilitation Act and ADA enforcement obligations are significant goes back to the first issue -- what is the bar exam "supposed to" do?

At this point (as far as I can see after having read more than 15,000 ADA and RA cases over 16 years), every State that does not provide performance testing, alternative assessment methods such as job demonstrations portfolios of work or reciprocity to other more demanding States' bar exam passage would appear to violate the disabilty laws' requirement to test only "essential functions" of the practice of law. It seems changes to the bar admission process in New York comes the closest to meeting the requirements of the ADA. A number of States are woefully out of disability compliance, e.g., Floida (no performance testing component, even years after former Florida Supreme Court Chief Justice Romemary Barkett's committee recommended Florida change its bar exam to include a performance test).

So, back to the poorly reasoned conclusion

"If the bar exam truly does what it's supposed to, why not allow it to be the sole barrier to entry?"

the answer to "why not" is that if the bar exam were the sole barrier to entry precisely BECAUSE it DOES NOT measure the essential functions of a practicing lawyer, it would serve as a barrier to entry (discriminatory exclusion) to at least one or more protected classes of people.

The handwriting is already on the wall -- similar standardized examinations such as Alaska's high school exit exam have been found to violate the ADA.

This is why it is significant to certain classes of people who exactly is setting the standards, criteria, and testing for bar admissions, lest bar admissions become another No Child Left Behind-all disabled left behind failure.
6.25.2006 1:50am
ReaderY:
Oh! And to think that as late as the 1970s nobody thought education was any business of the Commerce Clause -- the Civil Rights laws were all Spending Clause creatures so far as education was concerned -- nobody thought Congress had any business regulating what a school did directly.
6.25.2006 1:53am
Bobby B (mail):
More and more attorneys are choosing to not join the ABA, for the simple reason that it no longer concerns itself with representation of attorneys - it now represents liberal thought first, and liberal attorneys second. It once did fulfill the role of the association of the entire profession, and, in those days, it was a rational choice of a source of information when non-lawyers needed informed feedback about judicial nominees. Who knows more about the true worth of a judge than the (politically-mixed) group of attorneys who must deal with them? (And don't get me started on the folly of electing judges with party endorsements.)

Now, though, one might be better off asking Democrat attorney-politicians for the same reference information. At least then, the bias would be explicit. To pretend now that an ABA judicial evaluation is anything other than a partisan work is a misrepresentation.

Many of our state bar associations are now truly infected with this partisan slant, and I can see the day coming when we establish bar associations in each state, and nationally, for each party.
6.25.2006 2:27am
Cornellian (mail):
More and more attorneys are choosing to not join the ABA, for the simple reason that it no longer concerns itself with representation of attorneys - it now represents liberal thought first, and liberal attorneys second.

I think that's overstating it. A huge chunk of what the ABA does is mundane technical stuff of interest to practicing lawyers and of no particular ideological bent. The stuff about judicial nominee recommendations or accredition standards is more visible but it's not the sole or necessarily even the major function of the ABA.
6.25.2006 3:36am
M. Simon (mail) (www):
If the Bar Exam is not a test of competency then why have it?

What was done before the ABA existed?

I read the engineering trade press and from time to time there are complaints of "why don't we have a restraint of trade organization like doctors and lawyers do to maintain engineering salaries and jobs".

Medical cartels. Legal cartels. Such things used to be unAmerican. In fact Dr. Benjamin Rush (Declaration Signer) warned of the cartelization of medicine.
6.25.2006 5:54am
MnZ (mail):
Accountants also have pretty strict accreditation standards, though I suppose a CPA isn't an absolute requirement for being hired.

There are actually several accounting certifications available such as certified internal auditor (CIA) and certified management accountant (CMA). A CPA is legally necessary to provide public auditing services. However, public auditing services is only a small part of what accountants do.
6.25.2006 6:43am
MnZ (mail):
I should add that those other accounting certifications are not overseen by AICPA. Furthermore, a person can be an accountant without any of these certifications.
6.25.2006 6:51am
Toby:
That depends, MnZ.

In CA, there was a grandfathered non-CPA group, but as the grandfathering was in the late 50's, that group is getting small enough as to be nearly non-existant.

Two questions that strike me, a non-lawyer, from this conversation:

1) If the ABA were not there, if the law school requirement were not there,law would be harmed how? With no answer to that question, everything else is empty air.

2) If the ABA were not a legal group, but merely a professional group, like the Better Business Bureau, able to let you display the logo or not, what would be harmed.

THere is some edge case in my mind associated with Public Defenders, but I am not sure if this ichanged by any of this discussion, as it seems that the first claim on appeal was "The Public Defender was incompetent, so the trial was not fair"

I know for too many people who did not actually attedn Law School except to pick up the syllabus and take the test. In one case, I know someone who "attended" an Ivy League law school while continuing to live in his undergrad frat house in North Carolina.

So what's wrong with
- Pass the Test
- N years of Aprenticeship
matching the CPA standards?
6.25.2006 1:59pm
Truth Seeker:
The problem with apprnticeships is that if you're not connected you might not get one and foreven ber locked out fo the guild.
Required apprenticeships in any field are evil ways to protect the establishment, unless anyone who qualifies can get one.
6.25.2006 3:17pm
MnZ (mail):
Toby,

All CPAs are accountants but not all accountants are CPAs. Many tax and corporate accountants and internal auditors are not CPAs. If you look at job postings for accountants, a CPA is often desirable but rarely required.

I think the field of medicine provides a potentially good example. Over the last few decades, the field of osteopathy has grow greatly. Meanwhile, the differences between ODs and MDs have lessened (e.g., ODs have become much more scientific, the quality of osteopathic students and schools has increased). There could be several explanations for these facts. However, it is important to note that when monopolists constrain output - two things tend to happen. The quantity supplied of substitutes tends to increases. In addition, the substitutes tend to become less differentiated from the monopolized product.
6.25.2006 3:33pm
Toby:
Agreed, many internal "accounting" positions are nto certified. But if someone puts out a shingle as accountant, they are in any state (not a large sample) that I am aware of. There are many, though, who advertise bookeepping services. These would be more equivalent to the positions you name.

I wasn't really thinking of in-house positions.
6.25.2006 3:52pm
Mary Katherine Day-Petrano (mail):
"If the Bar Exam is not a test of competency then why have it?

What was done before the ABA existed?"

Before the ABA we lived in the bar examiner era of Abraham Lincoln, who called applicans in, looked them over, quizzed them ob their skills, and admitted them to practice. No law school, no standardized examinations, no significant delay or unnecessary expense.

But then, that is not the relevant question. This is:

"So what's wrong with
- Pass the Test
- N years of Aprenticeship
matching the CPA standards?"

First, taking the compound question apart, what IS relevant is NOT clinging to the outdated historical methods of bar examination currently used but rather what the States' bar examiners intend to do to CHANGE their testing formats to ensure the current "pass the test" outdated formats used since appx. 1948 are CORRECTED to meet the Americans With Disabilities Act and Rehabilitation Act accessibility requirements of people with disabilities who require everything be done electronically in real time.

To understand the concept, see, e.g. Access to Computer Based Testing for Persons With Disabilities. In particular, I would calle attention to the accessibility requirements for speech recognition and the interactive placement at range of actual performance level testing format by either increasing or decreasing difficulty levels following a right or wrong answer -- a type of testing that more accurately pinpoints those who lack sufficient skills to meet the minimal qualification level for a license, as well as those who test at a much higher level of performance difficulty that they can meet the essential functions of a Board Specialization credential immediately upon initial licensure (rendering the non-essential 'many years of practice' qualification criteria currently required to obtain a Board Specialization in States like Florida violative of the Americans With Disabilities Act and Rehabilitation Act as applied to those who can test at the difficulty level required to meet the essential functions of practice in the area of Specialization).

Notably, the current outdated inaccessible bar examination method is completely incapable of testing one of the most important skills taught in law school that is an essential function of the practice of law -- legal research ability. It would be conducive to such testing to adapt the above interactive electronic computer-accessible testing format to simply pose performance questions requiring log-on to LEXIS or WESTLAW on an open-ended resolve-the-problem basis.

As far as the second part of the question regarding apprenticeship of CPAs, this is a very interesting point, since currently lawyers are licensed based on an outdated test that excludes a large proportion of qualified disabled people WITHOUT A REQUIREMENT OF EVER HAVING TO DEMONSTRATE THE ABILITY TO APPLY LAW SCHOOL AND TESTING KNOWLEDGE TO REAL ESSENTIAL FUNCTIONS IN A REAL LAW PRACTICE IN REAL-TIME. Myself, I have enough accounting classes in my B.S. and M.B.A. degrees to qualify for the CPA exam, but never apprenticed because crunching numbers is not my thing. I would, however, definitely advocate (and participate in) a post-graduation "residency" apprenticeship period in attorney licensing because the desire to practice law is my thing. I think this CPa apprenticeship idea gets back to what I mentioned in my earlier post about New York leading the way among State bar examiners to change the admissions testing vs alternative assessment methods criteria to meet the anti-discrimination requirements of the ADA and RA. But is about more than that -- it is about how to best determine competency to practice, and the outdated current "pass the bar exam" does not do that withou any amount of accuracy or fit that can satisfy strict scrutiny.

"I read the engineering trade press and from time to time there are complaints of 'why don't we have a restraint of trade organization like doctors and lawyers do to maintain engineering salaries and jobs'."

I have to day, this entire discussion as well as the whole idea the DOJ was able to strong-arm the ABA to agree to the consent decree is very interesting in light of the Goldfarb case holding the anti-trust laws do not apply to the area of bar admission/attorneys.
6.25.2006 7:03pm
Mary Katherine Day-Petrano (mail):
I apologize for the thunderstorm in the background that is affecting my speech recognition device. I live in Florida.

"ob"= about

"withou"= with

"I have to day"= I have to say
6.25.2006 7:09pm
Mary Katherine Day-Petrano (mail):
For more on why the States' bar examiners need to CHANGE the outdated discriminatory "pass the exam" criteria as suggested in my post above, in addition to commending the New York State bar examiners efforts, I would also like to point out the recognition and hope for change incoming Chief Justice Fred Lewis has given to the totally electronic accessibility needs of some of Florida's future lawyers. See, Technology guides blind student through law school and Overcoming Barriers -- Justice Lewis accommodates a vison-impaired disabled future lawyer and his service dog at the Florida Supreme Court ("'Anything is possible. You just have to believe in it.'")

I rest my case.
6.25.2006 7:36pm
Bobby B (mail):
Cornellian:

Between taking national partisan stands on abortion, passing diversity requirements that explicitly direct schools to ignore the law, making judicial reccomendations based on ideology, and just generally seeming to express an associational "will" that runs counter to the actual will of many of its (former) members, the ABA is losing more members. That they also publish magazines telling us how to use computers to find the internet and how to use proper grammer, and send out pamphlets about gender fairness in the courts, does not detract from my statement.

It has become a partisan organization that ignores the views of one half of its potential constituents.
6.26.2006 3:34am
Houston Lawyer:
I find the CPA discussion to be interesting. I was an accounting major undergrad and passed the CPA exam before I graduated college. I never did anything with it, because I went directly into law school. At that time, I could have become a CPA with two years of practice. It now appears that you need to meet a much higher standard to be licensed as a CPA than you did when I graduated in 1982. Meanwhile the standards to becoming an attorney haven't changed at all.

I resigned from the ABA many years ago because of their political posturing, which is consistently left wing.
6.26.2006 1:23pm
Richard Gould-Saltman (mail):
Only on a blog read by as many self-described "conservatives", "libertarians", (and some, let me put it bluntly, right-wing fanatics) and as few self-described leftists as this one, could the description of the ABA as a notoriously left-leaning organization pass without anyone's expression of incredulous amusement.
6.28.2006 2:15pm