Federal Trade Commission v. Superior Court Trial Lawyers Association/Concurrence Blackmun

Justice BLACKMUN, concurring in part and dissenting in part.

Like Justice BRENNAN, I, too, join Parts I, II, III, and IV, of the Court's opinion. But, while I agree with the reasoning of Justice BRENNAN's dissent, I write separately to express my doubt whether a remand for findings of fact concerning the market power of the Superior Court Trial Lawyers Association (SCTLA or Trial Lawyers) would be warranted in the unique circumstances of this litigation. As Justice BRENNAN notes, the Trial Lawyers' boycott was aimed at the District's courts and legislature, governmental bodies that had the power to terminate the boycott at any time by requiring any or all members of the District Bar-including the members of SCTLA-to represent indigent defendants pro bono. Attorneys are not merely participants in a competitive market for legal services; they are officers of the court. Their duty to serve the public by representing indigent defendants is not only a matter of conscience, but is also enforceable by the government's power to order such representation, either as a condition of practicing law in the District or on pain of contempt. See Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932) ("Attorneys are officers of the court, and are bound to render service when required" by court appointment); see also United States v. Accetturo, 842 F.2d 1408, 1412-1413 (CA3 1988);  Waters v. Kemp, 845 F.2d 260, 263 (CA11 1988). #fn-s

The Trial Lawyers' boycott thus was a dramatic gesture not fortified by any real economic power. They could not have coerced the District to meet their demands by brute economic force, i.e., by constricting the supply of legal services to drive up the price. Instead, the Trial Lawyers' boycott put the government in a position where it had to make a political choice between exercising its power to break the boycott or agreeing to a rate increase. The factors relevant to this choice were political, not economic: that forcing the lawyers to stop the boycott would have been unpopular, because, as it turned out, public opinion supported the boycott;  and that the District officials themselves may not have genuinely opposed the rate increase, and may have welcomed the appearance of a politically expedient "emergency."

I believe that, in this unique market where the government buys services that it could readily compel the sellers to provide, the Trial Lawyers lacked any market power and their boycott could have succeeded only through political persuasion. I therefore would affirm the judgment below insofar as it invokes the United States v. O'Brien 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), analysis to preclude application of the per se rule to the Trial Lawyers' boycott, but reverse as to the remand to the FTC for a determination of market power.