Antitrust Accounting

Sherman’s March approaches Tigard

The PLF’s appearance in an intentional tort suit — which alleges misconduct such as fraud and conversion — threatens the exemptions from federal antitrust law that currently sustain the PLF. That is to say, the case threatens the PLF’s continued existence.

This matter is of great importance not just to lawyers, but the public also, because the Bar and the PLF currently have an effective monopoly on law and justice in Oregon; and predictably in such a monopoly, they’re hoarding those things mainly for themselves.

The Bar’s private interests in the very field in which it regulates — professional malpractice insurance — coupled with the lack of public accountability for its [PLF]-related activities, reveals that the Bar presents a poor candidate for exemption from the active supervision requirement.

Conspicuously absent from the majority’s discussion is any acknowledgment of the potential for abuse when a state delegates regulatory authority to an organization, such as the Bar, which brings its own set of economic interests to bear on the regulated field. Experience has shown that, best intentions aside, the organized bar may seek to protect the interests of its members despite arguably conflicting public interests.

While the potential for self-interested economic behavior may not be sufficient in and of itself to trigger the active supervision requirement, when viewed in light of the Bar’s lack of publicly accountable decisionmaking, there is a need for state oversight.

The dissent went on to enumerate the many ways in which there is no oversight of the Bar or the PLF and “its Fund decisions,” such as through rate hearings, mandatory disclosure regulations, and checks upon the Board of Governors through an electoral process.

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