Short v. Demopolis

Pearson, J.

(concurring in part) — I concur in the result reached by the majority opinion. However, I am somewhat puzzled by some of the language contained therein. Therefore, I think it best to examine more closely the rationale behind our decision.

The question of whether professional activities of attorneys, as members of a "learned profession", can constitute "trade or commerce" was answered in the affirmative in Goldfarb v. Virginia State Bar, 421 U.S. 773 , 44 L. Ed. 2d 572 , 95 S. Ct. 2004 (1975). The Court there held that minimum fee schedules, published by a county bar association and enforced by the state bar, violated the Sherman Act, 15 U.S.C. § 1 (1976). The Court rejected the argument that the *69 bar association was automatically exempted from antitrust regulation because learned professions were not "trade or commerce", noting that such a "sweeping exclusion" would allow lawyers to adopt anticompetitive practices with impunity. Goldfarb , at 787.

It is of critical importance to note, however, that Gold-farb dealt only with the "business aspect" of the law profession. See Goldfarb, 421 U.S. at 788 . The same is true of other federal cases imposing liability upon lawyers under the Sherman Act. Many of these cases are discussed by the majority. These cases dealt with price fixing agreements and other anticompetitive devices, rather than the actual practice of law. To fail to make this distinction would be to equate the actual practice of law with ordinary commercial enterprise, something which the Court in Goldfarb expressly refused to do. "It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas." Goldfarb , at 788 n.17.

This commercial-noncommercial distinction was sharply drawn in Marjorie Webster Junior College, Inc. v. Middle States Ass'n of Colleges & Secondary Schs., Inc., 432 F.2d 650 (D.C. Cir.), cert. denied, 400 U.S. 965 (1970), where the court held that refusal by the association to accredit plaintiff college was not a restraint of trade. In so holding, the court stated that the "proscriptions of the Sherman Act were 'tailored * * * for the business world,' not for the noncommercial aspects of the . . . learned professions." Marjorie Webster, at 654. See also Frahm v. Urkovich, 113 Ill. App. 3d 580 , 447 N.E.2d 1007 (1983) (legislature's use of "trade or commerce" in consumer protection statute was not meant to include the actual practice of law). The rationale of Marjorie Webster and Frahm , together with the narrowness of the Court's opinion in Goldfarb , mandate a conclusion that the direction of the law is toward validating judicial exemptions for noncommercial aspects of the professions.

*70 The majority properly makes this commercial-noncommercial distinction, holding that the entrepreneurial aspects of legal practice fall within the sphere of "trade or commerce" under RCW 19.86.020 while allegations primarily concerning professional malpractice do not involve "trade or commerce". I am in complete accord with this holding.

I am puzzled, however, by some of the dictum which appears in the majority opinion. My first concern is with the majority's discussion of the "important public policy interests at stake" in this case. After noting that "[c]urrent remedies available to the victims of professional malpractice or misconduct have shortcomings", the majority concludes that "[t]he CPA should be 'available as an efficient and effective method of filling the gaps left vacant by the existing common law . . .'" Majority, at 62. This language appears to me to be inconsistent with that portion of our holding which excludes claims of professional malpractice from the purview of the Consumer Protection Act (CPA); it leaves one with the impression that the CPA should be applied to all aspects of legal practice, rather than just to the business aspect.

There are sound reasons of public policy, not discussed by the majority, supporting the commercial-noncommercial distinction we adopt in this case. Our state's Consumer Protection Act has no general requirement of fault. All that is required is that an act complained of must: (1) impact the public interest, (2) be within the sphere of trade or commerce, and (3) be unfair or deceptive. With respect to this last factor, the rule in this state is that:

An "unfair or deceptive practice" does not require a finding of an intent to deceive or defraud and therefore good faith on the part of the seller is immaterial. ... To constitute a deceptive practice, the [act] need only have a tendency or capacity to deceive a substantial portion of the purchasing public.

Fisher v. World-Wide Trophy Outfitters, 15 Wn. App. 742, 748 , 551 P.2d 1398 (1976). See also Haner v. Quincy Farm *71 Chems., Inc., 97 Wn.2d 753 , 649 P.2d 828 (1982). Thus, if the act complained of was in fact deceptive, although done with the best of intentions, liability could result under the CPA regardless of the care taken in providing the service. Such a state of affairs would make it virtually impossible for an attorney to effectively perform the traditional role of legal counselor. The law is often vague and unsettled; several legal opinions are often possible, especially in borderline cases. Liability should be imposed only where an attorney has failed to use due care to serve a client. Imposition of liability under the CPA, however, would require an attorney to guarantee much more than just the care used in forming his opinions. Since even a carefully rendered opinion could, if incorrect, have the capacity to deceive, the attorney would have to insure the correctness of his opinions and strategies. I sincerely doubt that the CPA was intended to so radically alter the standard of care owed by lawyers and other professionals.

I am also uncertain what the majority means when it states:

While we hold the term "conduct of any trade or commerce" does not exclude all conduct of the profession of law, we do not decide in this case whether the CPA applies to every aspect of the practice of law in this state as to the performance of legal services.

Majority, at 66. It seems to me, by excluding claims which primarily concern professional malpractice from the purview of the CPA, we have necessarily decided that the CPA does not apply to every aspect of the practice of law in this state.

Finally, I would emphasize that our holding merely places certain types of conduct within the scope of the term "trade or commerce" as that term is used in RCW 19.86-.020. We do not hold that such conduct violates RCW 19.86. The procedural posture of this case does not allow us to determine whether the public interest requirement of Anhold v. Daniels, 94 Wn.2d 40, 46 , 614 P.2d 184 (1980) *72 has been met. That question has been saved for another day.

Williams, C.J., Brachtenbach, J., and Hamilton, J. Pro Tern., concur with Pearson, J.