THE FEDERAL Trade Commission has begun to assert antitrust jurisdiction over the professions, but the scope of its powers has not yet been clarified by the courts. Take, for instance, the case it recently decided against some Michigan doctors whom it found to have violated the antitrust laws in an attempt to force Blue Cross, Blue Shield and-- the relevant issue here--the state-run Medicaid program to pay more for medical services.
Under the "Noerr-Pennington doctrine," conduct which would otherwise be in violation of the anti- trust laws is protected if it takes the form of a petition to the government for the redress of grievances. Thus, if the doctors had acted together to influence the government to raise fees, that action might be protected as a form of free speech rather than a conspiracy to fix prices.
The commission found otherwise, though, holding that while Noerr-Pennington applies to some efforts to influence the government--letter-writing, for example--it does not apply to coercive behavior such as a boycott. Other antitrust experts question the application of Noerr-Pennington when the boycotters are in a buyer-seller relationship with the government and the action could be described as economic rather than political in nature.
Last week the commission directed its staff to look into the recent action of members of the D.C. Superior Court Trial Lawyers Association. They refused to take appointed criminal cases until their compensation rate, paid by the city, was raised. Was this a conspiracy by competing lawyers to fix prices? Or was it political action to which the antitrust laws do not apply?
We hope these questions won't even get as far as the courts. The commission would be well advised to drop the idea of using the trial lawyers' boycott as a test case for regulating the legal profession. The concerted action in this case was directed at a government agency, and the Noerr-Pennington defense will certainly be raised, making extensive litigation probable. There is also a great deal of public sympathy in the community for these lawyers, whose work is valuable and difficult and whose pay hadn't been increased for 13 years. Surely a better, more significant case can be found to establish the FTC's powers in regulating the legal profession.