four-year statute of limitations. 15 U.S.C. § 15b.
The Illinois Supreme Court and this court adopted the relevant provisions of the ABA Model Code in 1980 and 1982, respectively.
Moreover, these two courts exercise exclusive power to regulate and discipline attorney conduct. See, e.g., People ex. rel. Brazen v. Finley, 119 Ill. 2d 485, 519 N.E.2d 898, 901-02, 116 Ill. Dec. 683 (1988); General Rule 3.51. Therefore, any ethics opinions issued by the private associations could not have had any cognizable anticompetitive effects after 1982. Cf. In re Airport Car Rental Antitrust Litigation, 521 F. Supp. 568, 574 (N.D. Cal. 1981), aff'd, 693 F.2d 84 (9th Cir. 1982). Because plaintiffs filed their original complaint six years after there could have been any significant anticompetitive effect from the private associations' ethics opinions, plaintiffs' claims based on these opinions are time-barred.
Therefore, the Noerr doctrine and the statute of limitations for federal antitrust cases immunize defendants ABA, ISBA, and CBA from the antitrust liability alleged in plaintiffs' complaint.
2. The Governmental Actors
The Justices, the Executive Committee, the ARDC, and the U.S. Trustee also are immunized from antitrust liability, but for different reasons.
The Justices and the ARDC are immune from antitrust liability under the state-action doctrine of Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943). In Parker v. Brown the Supreme Court held that the Sherman Act was not intended to restrain a state or its officers or agents from activities directed by a state legislature. 317 U.S. at 350-51, 63 S. Ct. at 313. Moreover, a state supreme court, when acting in a legislative capacity, occupies the same position as that of a state legislature. Bates v. State Bar of Arizona, 433 U.S. 350, 360, 97 S. Ct. 2691, 2697, 53 L. Ed. 2d 810 (1977). Therefore, the Illinois Supreme Court's adoption and enforcement of the challenged provisions of the ABA Model Code are exempt from Sherman Act liability as state action. Hoover v. Ronwin, 466 U.S. 558, 568, 104 S. Ct. 1989, 1995, 80 L. Ed. 2d 590 (1984).
Moreover, the members of the ARDC serve merely as agents of the Illinois Supreme Court. See Ill. Ann. Stat. ch. 110A, paras. 751-753 (Smith-Hurd Supp 1989.); In re Mitan, 75 Ill. 2d 118, 387 N.E.2d 278, 280, 25 Ill. Dec. 622 (1979) ("The [ARDC] and its various officers, as well as the Inquiry Board, the hearing panel and the Review Board, serve only as agents of this court in administering the disciplinary functions that have been delegated to them."). Therefore, the members of the ARDC, too, are exempt from antitrust liability. Bates, 433 U.S. at 361, 97 S. Ct. at 2691; Hoover, 466 U.S. at 572-73, 104 S. Ct. at 1997.
Additionally, the Executive Committee and U.S. Trustee also are insulated from antitrust liability. The United States and its agencies or instrumentalities are not "person[s]" within the meaning of the Sherman Act. Rex Systems, Inc. v. Holiday, 814 F.2d 994, 997 (4th Cir. 1987); see also North Jersey Secretarial School, Inc. v. McKiernan, 713 F. Supp. 577, 584 (S.D.N.Y. 1989) ("Antitrust lawsuits brought against United States agencies and their officials cannot be maintained."). This court's Executive Committee consists of five federal district court judges charged with the responsibility of supervising and disciplining attorneys admitted to practice before this court. (para. 15; General Rule 3.51-3.56; Brown v. McGarr, 774 F.2d 777, 782 (7th Cir. 1985).) Plaintiffs sue the members of the Executive Committee only in their official capacity. (para. 15.) Therefore, the actions of the members of the Executive Committee in adopting and enforcing the provisions of the ABA Model Code in question are exempt from antitrust liability. Rex Systems, 814 F.2d at 997.
Plaintiffs have alleged that the U.S. Trustee violated the Sherman Act by moving in the bankruptcy court for an order both requiring Lawline to disgorge a fee received for the unauthorized practice of law and enjoining Lawline from further bankruptcy practice. (para. 201 and Exhibit G attached to complaint.) Plaintiffs also complain that the U.S. Trustee reported Lawline's alleged unauthorized practice of law to the ARDC. (paras. 190-94).
The U.S. Trustee and his assistant, however, are federal executive officers appointed by the United States Attorney General. 28 U.S.C. §§ 581-82. Among the official duties of the U.S. Trustee is the monitoring of attorney fee applications in bankruptcy cases. 28 U.S.C. § 586(a)(3)(A). The U.S. Trustee may raise and appear and be heard on any issue relating to his responsibilities in a bankruptcy case. Bankruptcy Rule X-1009. Challenging unwarranted fee applications is a part of the U.S. Trustee's duties. In re Pierce, 809 F.2d 1356, 1359 n. 8 (8th Cir. 1987). Therefore, as a federal officer, the U.S. Trustee's alleged actions before the bankruptcy court are exempt from federal antitrust liability. Rex Systems, 814 F.2d at 997.
Moreover, while the U.S. Trustee's reporting of the unauthorized practice of law to the ARDC is not specifically provided for by statute, plaintiffs have presented (and this court has found) no authority for the proposition that making such a report exceeds the U.S. Trustee's official duties. On the contrary, the Supreme Court had stated that such free and open cooperation between federal and state officers is to be "commended and encouraged." Elkins v. United States, 364 U.S. 206, 221, 80 S. Ct. 1437, 1446, 4 L. Ed. 2d 1669 (1960).
Thus, plaintiffs have alleged no facts supporting allegations that the U.S. Trustee performed anything other than official duties and acted in anything other than an official capacity in dealing with Lawline. Therefore, as federal officials the U.S. Trustee and his assistant also are not subject to federal antitrust liability in this case. Rex Systems, 814 F.2d at 997.
Because all of the defendants in this case are immune from federal antitrust liability, Count I must be dismissed.
C. Count II: Section 1983 Claim
Plaintiffs bring Count II of their complaint under 42 U.S.C. Section 1983 ("Section 1983"). Plaintiffs allege that defendants' promulgation, adoption, and enforcement of the portions of the ABA Model Code at issue violated the First Amendment, the Due Process Clause, and the Equal Protection Clause.
1. State Action
It is axiomatic that state action is a necessary element of Section 1983 and Fourteenth Amendment claims. National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 461, 102 L. Ed. 2d 469 (1988). However, as the Court stated in Tarkanian :
In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), we established that the State Supreme Court's enforcement of disciplinary rules transgressed by members of its own bar was state action. Those rules had been adopted in toto from the American Bar Association Code of Professional Responsibility. Id., at 360 n. 12, 97 S. Ct., at 2697 n. 12. It does not follow, however, that the ABA's formulation of those disciplinary rules was state action. The State Supreme Court retained plenary power to reexamine those standards and, if necessary, to reject them and promulgate its own. See id., at 362, 97 S. Ct., at 2698.
109 S. Ct. at 463 (emphasis added; footnote omitted). Thus, both Bates and Tarkanian definitively resolve that the alleged action by the private associations of promulgating a disciplinary code later adopted and enforced by the Illinois Supreme Court and this court is not state action.
Therefore, Count II must be dismissed against the ABA, ISBA, and CBA for failure to state a claim upon which relief can be granted.
2. Constitutional Provisions
Because Count II fails to state a claim against the private associations, only the Justices, the Executive Committee, the ARDC, and the U.S. Trustee remain. Plaintiffs allege that by adopting and enforcing the portions of the ABA Model Code at issue these defendants violated the First Amendment, the Due Process Clause, and the Equal Protection Clause. It is true that these state actors enjoy judicial and prosecutorial immunity from liability for money damages in this case. See, e.g., Galahad v. Weinshienk, 555 F. Supp. 1201, 1204 (D. Colo. 1983); Supreme Court of Virginia v. Consumers Union, Etc., 446 U.S. 719, 731-737, 100 S. Ct. 1967, 1974-1977, 64 L. Ed. 2d 641 (1980). However, because plaintiffs also seek a declaration that the provisions of the ABA Model Code at issue are unconstitutional, this court's determination of the constitutional challenge will most efficiently resolve defendants' motions to dismiss.
a. Equal Protection and Due Process
The Justices aptly note, as they have throughout their well-reasoned memoranda, that to the extent plaintiffs have raised equal protection and due process challenges to the ABA Model Rules in question the standard of review is the same and thus both claims should be treated together. Sutker v. Illinois State Dental Society, 808 F.2d 632, n. 1 (7th Cir. 1986).
As noted, Disciplinary Rules 3-101(A) and 3-103 of the ABA Model Code prevent lawyers from making certain arrangements with nonlawyers involving the unauthorized practice of law. However, the distinction between lawyers and nonlawyers implicates neither a suspect classification nor a fundamental right. Cf. Illinois Health Care Assoc. v. Dept. of Public Health, 879 F.2d 286, 288 (7th Cir. 1989); Sutker, 808 F.2d at 634. Therefore, the lawyer/non-lawyer classification created by the ABA Model Code provisions at issue are presumed constitutional and need only be "rationally related to a legitimate state interest" to survive equal protection or due process analysis. Sutker, 808 F.2d at 634.
In applying the rational basis test, if this court "can hypothesize plausible reasons for legislation that are within the legitimate goals of a government, nothing else is required to validate the governmental classification and it does not matter whether the reasons advanced actually motivated the legislative action." Illinois Health Care Assoc., 879 F.2d at 289, quoting Evans v. City of Chicago, 873 F.2d 1007, 1016 (7th Cir. 1989).
The Illinois Supreme Court has stated that the purpose of the attorney disciplinary process is "to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach." In re Schelly, 94 Ill. 2d 234, 446 N.E.2d 236, 239, 68 Ill. Dec. 502 (1983). Disciplinary rules preventing lawyers from aiding nonlawyers in the unauthorized practice of law and from forming partnerships with nonlawyers if any of the activities of the partnership consist of the practice of law are rationally related to those goals.
Therefore, plaintiffs' equal protection and due process claims must be dismissed.
b. First Amendment
Plaintiffs' First Amendment claims also must be dismissed. In Turner v. American Bar Association, 407 F. Supp. 451 (N.D. Tex. 1975) plaintiffs, citing much of the same case law as the plaintiffs in this case, claimed that they had, inter alia, a First Amendment right to have unlicensed lay counsel assist them in court proceedings. The court disagreed. Said the court:
[Freedom of association cases such as NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)] did not involve the question of securing redress of grievances in Court by unlicensed counsel. Rather, they held that collective activity undertaken to obtain meaningful access to the Courts is a fundamental right within the protection of the first Amendment, and that a State cannot, under its unauthorized practice of law statutes or solicitation of legal business statutes, prohibit such activity. . . . This Court [is] holding that the Constitution of the United States, in particular the First and Sixth Amendments, does not grant to the Plaintiffs the right to have an unlicensed layman represent them in Court proceedings. The corollary of this holding is that unlicensed laymen cannot under the Constitution demand the right to represent other litigants.