FTC Endorses Florida Supreme Court Action Eliminating the ABA’s Bar Admission Monopoly

Federal Trade Commission staff on Tuesday endorsed the Florida Supreme Court’s decision to eliminate the American Bar Association’s (ABA) status as the sole accrediting agency dictating the educational requirements to take the bar exam and become a licensed attorney in Florida.

Responding to the court’s invitation for comment, the directors of the Office of Policy Planning and Bureau of Competition sent a letter concurring with the court’s conclusion that the prior rule was “not in Floridians’ best interest.”

Previously, to be eligible to take the Florida bar exam, applicants had to obtain their legal education from a law school “approved by the American Bar Association,” making the ABA the gatekeeper for Florida bar eligibility. The Florida Supreme Court action extends accreditation authority to certain types of accrediting agencies recognized by the U.S. Department of Education and, where appropriate, approved by the court.

The letter lauded the court’s decision to “create the opportunity for additional entities to carry out an accrediting and gatekeeping function” and encouraged the court’s efforts to promote the recognition of new accreditors.

The letter explained that the ABA standards for law school accreditation impose an elitist model of legal education, driving up the cost of legal education and thereby limiting the supply of lawyers. This reduction in supply of legal services serves the anticompetitive interests of the lawyers who dominate the ABA membership, while undermining the interests of consumers seeking affordable legal services.

The letter drew on the Commission’s experience and commentary from legal scholars to explain that these harms are to be expected when states grant professional or trade associations the authority to restrict competition among themselves or limit the ability of others to enter the profession.

The letter also raised concerns that the ABA uses its authority to set standards for legal education to impose ideological mandates that do not advance legitimate educational goals and may even violate federal law.

The letter stated that the Florida Supreme Court’s action represents an important step in undermining the ABA’s monopoly on the accreditation of law schools, especially in light of other state and federal initiatives currently underway. The letter applauded those developments and encouraged more states to take similar steps to reduce reliance on ABA accreditation of law schools.

The Commission vote authorizing the issuance of the staff letter was 2-0.