I wrote recently about the new law that made family law practitioners’ life much easier because appeals from just about any divorce-related claim are no longer interlocutory. That is all well and good for divorce practitioners, but it does not resolve the matter for every case. Which interlocutory order can be appealed and which can not be appealed is almost never an easy decision.
The two-part test itself is easy: Whether a substantial right is affected by the challenged order and whether this substantial right might be lost, prejudiced, or inadequately preserved in the absence of an immediate appeal. The problem is in deciding what is the substantial right. As the North Carolina Court of Appeals said on many occasions,
The substantial right test is more easily stated than applied.
Rockford-Cohen Group et al v. North Carolina Department of Insurance, Commissioner of Insurance Wayne Godwin, North Carolina Bail Agents Association (5 November 2013)
The Court of Appeals explained that the question is usually resolved on a case by case basis, based on the “particular facts” and “the procedural context” of the case. In other words, to borrow from E.M. Forster, How can the Court of Appeals tell what it thinks until it says what is says?
And so the answers come on a case by case—or as the case may be—right by right bases. For instance, what about the right to conduct business and get paid? Does that qualify as a substantial right? It seems the answer is ‘yes.’
This week, the Court of Appeals confirmed as a substantial right the “right to do business and collect remuneration as the exclusive provider.” The issue on appeal was whether the North Carolina Bail Agents Association gets to keep its monopoly for providing bail bondsmen with training—or whether the monopoly was unconstitutional. (In the end, the Court of Appeals decided that the monopoly did violate the North Carolina Constitution).
Be that as it may, the interlocutory appeal itself was allowed to proceed after the NCBAA successfully argued that if it were forced to forego its monopoly revenue while the case was pending, it would suffer an irreparable injury to a substantial right. NCBAA’s Response to Motion to Dismiss at 4.
In the same opinion, the Court of Appeals also remarked that the “right to do business pursuant to the franchise” was also a substantial right. Opinion at 4. The Court did not explicitly limit the substantial right conclusion to monopolies and franchising. Therefore, interference with the right to do business and collect remuneration constitutes a substantial right after Rockford-Cohen.
The substantive issue considered in Rockford-Cohen—while outside the narrow subject of this blog—may be of major significance to all lawyers.
Judge Linda McGee, writing for the unanimous Court, struck as unconstitutional SB 738, a law signed by former Governor Perdue.
SB 738 granted NCBAA—an association of bail bondsmen which likened itself to the North Carolina State Bar Association in its own submissions to the Court—the exclusive authority to sell mandatory training bail bondsmen. The resulting monopoly violated Article I, Section 34 of the North Carolina Constitution. In striking the law, The Court of Appeals was not persuaded by NCBAA’s “it is OK to monopolize a government-created market” argument. NCBAA’s Brief at 10. If a commodity (in this case training) is required by the state, the monopoly laws nevertheless apply—decided the Court—meaning that a single organization cannot control the market.
This should cause every member of the North Carolina State Bar to wonder: will the ripple effects of Rockford-Cohen reach home?
It is hardly news that the “professional monopoly” of lawyers is losing its footing. One only has to consider the Unites States Supreme Court decision in Goldfarb v. Virginia State Bar 421 U.S. 773 (1975), where SCOTUS ruled that the state bar’s anti-competitive activity violated federal antirust laws. Authoritative commentators have long been predicting the fall of monopoly to practice law. (See, for instance, Zachary C. Zurek’s informative review of the matter here). The real question is: will Rockford-Cohen threaten the monopoly of regulatory bodies? In the wake of this decision, will we see changes in how lawyers are regulated?