Antitrust & trade regulation.

The fabric of capitalism is woven by what economist Adam Smith called an "invisible hand," as millions of businesses produce goods and services that hundreds of millions of buyers purchase. It is only when businesses engage in anticompetitive exclusion, economic discrimination, predation,

or when unfair, deceptive, and unconscionable acts or practices occur, that this marvelous fabric may be torn in ways that transcend the normal give and take of mercantile pursuits, and ultimately cause harm to the competitive process. That is when a specialist in antitrust law or trade regulation law may be called upon to properly analyze and characterize the conduct (or structure), to postulate the type of anticompetitive (or deceptive, unfair, or unconscionable) effects likely to occur (or to have occurred), to measure the actual or potential effects, and where relevant, to assist in determining the existence of a defined market, the presence of market power, and economic damages. Ultimately, three concepts--characterization, market definition, and market power--are at the core of most antitrust analysis and any or all may be best addressed by a skilled, certified antitrust lawyer.

The certification program for this area of law is based on "standards" created by a committee of very experienced antitrust and trade regulation lawyers (selected by the Bar president). These "standards"--approved by the Board of Governors and the Florida Supreme Court and published at www.flabar.org (see Member Services/Certification/Antitrust and Trade Regulation Law/Committee Standards (Rule 6-22.1))--are designed to identify those lawyers who possess broad and varied experience; who regularly and consistently practice in the area of antitrust law, unfair methods of competition, and deceptive or unfair trade practices; and who have such special knowledge, skills, and proficiency that they should receive the tested privilege to hold themselves out to the public as certified antitrust and trade regulation lawyers.

Certification is intended to identify lawyers with a ready grasp of the substantive and procedural law bearing upon both typical and more unusual issues that arise in this area of practice. Additionally, they are expected to use sound judgment so that proportion both as to expense and delay is maintained between the nature of the problem to be solved and the cost and elaborateness of the proposed response or solution. Finally, certified antitrust and trade regulation lawyers are expected to be "professional" in every aspect of their approach to clients, courts or administrative bodies, and fellow practitioners.

Certified lawyers in this area of the law must be both counselors and advocates, not just advisors who might never be called upon to handle adjudicated controversies. Accordingly, the certification examination covers not just price fixing, limitations on production, division of markets, boycotts, attempts to monopolize and monopolization, tying of products, covenants to restrain trade, exclusive dealing contracts, price discrimination, and deceptive, unfair, or unconscionable acts or practices, and unfair methods of competition, but also the skills used in litigation of such matters.

Antitrust law covers just about every area of commerce, which requires certified lawyers in this specialty to understand legal and economic principles of broad applicability irrespective of the specific industry that may be involved. Further, because federal law helps shape the parameters of this area of law and it is not exclusively driven by Florida court decisions, it is essential for certified lawyers in this specialty to be familiar with the law on a national basis.

Currently, certified antitrust and trade regulation lawyers in Florida work in law firms that predominantly represent plaintiffs or defendants, and in the Florida Attorney General's Office. The Certification Committee draws its members from throughout Florida. While at present, the number of certified lawyers is quite limited, the Certification Committee is proposing to expand the potential pool of applicants through modifications in the approved "standards" and to seek approval to extend certification on a limited basis to practitioners of long standing who can demonstrate proficiency without an examination.

Florida's certification in this area of the law is unique in the United States and serves as a model for other states that may choose to provide such specialty certification.

Editor's note: Beginning on page 64, all Florida Bar board certified areas are listed with application filing period and staff contact. Also included are the names of present certification committee members and those on the first certification committee.

Stephen Nagin serves as chair, and Patricia Conners as vice chair, of the Antitrust & Trade Regulation Certification Committee. Both earned board certification in 2001.