The chairman of the Federal Trade Commission today scolded members of the American Bar Association for trying to get Congress to exempt lawyers from federal antitrust and consumer protection laws, saying they were seeking a "special privilege" that would place them "above the law."
At the same time, James C. Miller III began an intense negotiation effort at the ABA convention here for a compromise to "avoid a bruising battle" that might hold up the agency's authorization bill when a Senate committee begins considering it this week.
The exemption proposal is attached to the authorization measure. If enacted, it would strip the FTC of authority to investigate and move against practices by the legal profession that restrict competition among lawyers or deceive consumers. The profession is particularly subject to such accusations because of the restrictions it places from state to state on lawyer advertising and admissions to the practice of law.
The state bar associations and state supreme courts, which regulate the profession, have justified such restrictions as consumer protections. But critics say they sometimes are merely disguised restraints on competition.
The controversy is expected to reach a climax here this week when the ABA house of delegates votes on a proposal by Texas state bar officials urging Congress to enact the exemption. A similar controversy has raged around efforts by the American Medical Association to free doctors of FTC regulation.
Proponents of exemption here see it as a matter of "federalism" and state control, rather than a dispute over whether lawyers should be regulated.
"We are not seeking a privileged status," Blake Tartt, president of the Texas state bar, said in an interview today. "None of us is for nonregulation of lawyers," he said. But "regulation should be left up to the states as it is now and as it has been traditionally." Tartt said the state supreme courts were doing an adequate job of regulating the profession, and until the FTC can show otherwise, he said, the federal government should stay out.
The current battle with the FTC began in 1979 when the agency sent a survey to bar members around the country to determine the effects of advertising regulations and commissioned a Louis Harris survey of pricing and advertising practices. Many members of bar organizations refused to cooperate and saw the actions as the beginning of a potentially massive FTC attack on the profession.
The profession is by no means united on the issue. The Conference of State Chief Justices, for example, supports an exemption, but the National Association of Attorneys General is against it.
Miller, who is not a lawyer, said the FTC had no plans to launch a major offensive against the legal profession. He also said his effort is consistent with deregulation.
"We think competition is the order of the day, in the professions and everywhere else . . . ," he said. "Lawyers are the grease that makes the system work, the lubricant for the system." Illegal practices in that field, he said, affect the functioning of a much broader class of government and private activity.
The compromise under discussion here is the same Miller has approved in talks with the medical profession. Among other things, it would not grant any blanket exemption but would grant a statutory immunity for regulatory practices by the legal profession that are expressly approved by state legislatures.
The talks here are to continue and both sides said there was still some hope of an agreement. "The gentlemen from Texas are just that," Miller said, "gentlemen." Tartt said he was impressed with Miller, as well. "He is what we in Texas call a good old boy," Tartt said.