1 425 U.S. 748 (1976).Google Scholar

2 Id. at 773 n.25.Google Scholar

3 97 S. Ct. 2691 (1977).Google Scholar

4 Id. at 2709. The court divided five to four on this issue. Justices Blackmun, Brennan, White, Marshall, and Stevens formed the majority, while Chief Justice Burger and Justices Powell, Stewart, and Rehnquist dissented with respect to the First Amendment issue.Google Scholar

5 Id. at 2703.Google Scholar

6 Id. The majority opinion was carefully confined to the facts of the case. The issue of lawyer advertising relating to the quality of legal services was specifically reserved for later consideration, as was the issue of in-person solicitation of clients. The court emphasized that some forms of restraint on lawyer advertising were clearly permissible, such as restrictions on “false, deceptive, or misleading” advertisements. The court noted, too, that “there may be reasonable restrictions on the time, place, and manner of advertising.”Id. at 2709.Google Scholar

7 Id. at 2713 n.3 (Powell, J., dissenting).Google Scholar

8 Id.Google Scholar

9 Id. at 2710.Google Scholar

10 I shall differentiate in this discussion between “legal services” and legal tasks or steps. The latter refers to discrete portions of the lawyer's work, none of which would be sufficient in itself to satisfy the client's needs. Preparatory investigations, client interviews, and the drafting of a civil complaint are examples of legal tasks that do not constitute legal services. The term “legal service” refers to a sequence of tasks or steps sufficient to process the legal problem in its entirety.Google Scholar

11 421 U.S. 773 (1975).Google Scholar

12 As we shall see, fixed fees for legal services are a relatively weak indicator of standardization. If this were not so, we could explore other areas besides minimum fee schedules in which fixed fees are prominent, such as the fee schedules of legal clinics, prepaid or group legal service plans, and the fees for services advertised by law firms following the Bates decision.Google Scholar

13 Barbara A. Curran, in The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977), at ch. 5, sec. B.3, reports the interesting finding that lawyers charged no fees in a substantial number of cases (23 percent of lawyer users, describing their most recent consultation with a lawyer). In about a third of these no-fee cases, lawyers received compensation from sources other than the client (16 percent involved free legal service programs, while another 17 percent involved payment of the fee by a third party), but in the remaining two-thirds of the no-fee cases the lawyers apparently received no direct reimbursement for their work. This was occasionally true even when the lawyers became involved with the case in some depth. The lawyers actually pursued cases to their conclusions in 30 percent of the no-fee cases (excluding cases involving free legal service programs but including cases involving third-party payments).Google Scholar

14 The distinction between legal tasks and legal services is discussed in note 10 supra. Where lay assistants perform all the tasks necessary to resolve the legal problem that brought the client to the lawyer, they have, by definition, performed an entire legal service. Legal services that can be performed in their entirety by lay assistants may be, according to this second indicator, standardized or standardizable.Google Scholar

15 See Lester Brickman, Expansion of the Lawyering Process Through a New Delivery System: The Emergence and State of Legal Paraprofessionalism, 71 Colum. L. Rev. 1153, 1172-77 (1971); Richardson White, Jr., & John Hollister Stein, with Robert Fishman, Paraprofessionals in Legal Services Programs: A Feasibility Study (1968).Google Scholar

16 American Bar Association, Special Committee on Legal Assistants, Robert B. Yegge & Eli Jarmel, eds., New Careers in Law: II, at 91-144 (Chicago: American Bar Association, 1971).Google Scholar

17 William P. Statsky, The Education of Legal Paraprofessionals: Myths, Realities, and Opportunities, 24 Vand. L. Rev. 1083, 1093 (1971).Google Scholar

18 Id. at 1094.Google Scholar

19 William P. Statsky's What Have Paralegals Done? A Dictionary of Functions (National Paralegal Institute, 1973) provides a rather comprehensive list of legal services in which paralegal assistants have become involved. It breaks each of these services down into constituent tasks or steps and then rates these tasks on a scale of 1 to 3 with regard to (a) frequency with which the task is performed by paralegal assistants throughout the country; (b) degree of skill required to perform the task; and (c) degree of lawyer supervision required by paralegals in performing the task. Ninety separate tasks were classified by Statsky as “frequently” performed by paralegal assistants. Of these 90 tasks, 43 received skill ratings of 1 or 1.5. A rating of 1 signifies that the task “does not require much skill to perform.” Only 10 of the high-frequency tasks were rated 3 on the skill index (“requires considerable skill to perform”).Google Scholar

20 See discussion at pp. 820-22 infra.Google Scholar

21 White et al., supra note 15, at 65.Google Scholar

22 The high volume of adoptions in the Alaska office is explained in Id. at 99 n.15:Google Scholar

It is a common and well-accepted practice among native Alaskans to adopt children. However, in the past and to a lesser extent still today, the parents simply took the child into their home without bothering with the formalities of law. With the increasing influence of bureaucratic civilization, however, the villagers are coming to realize that the failure to formalize the relationship jeopardizes their rights to numerous benefits such as welfare, armed services death benefits, inheritance, and so forth.Google Scholar

23 Id. at 66-67.Google Scholar

24 Results of the small-firm survey—conducted by Kline D. Strong—and the large-firm survey-conducted by Bernard A. Ryan, Jr.—appear in the following volume: American Bar Association Special Committee on Legal Assistants, The Utilization of Legal Assistants by Law Firms in the United States: Liberating the Lawyer (Preliminary Draft, 1971). The small-firm survey is also discussed in Kline D. Strong & Arben O. Clark, Law Office Management (St. Paul, Minn.: West Publishing Co., 1974).Google Scholar

25 Sixty-seven percent of solo practitioners surveyed, 59 percent of two-lawyer firms, 33 percent of three-lawyer firms, and 29 percent of four-lawyer firms. ABA Special Committee on Legal Assistants, supra note 24, at 40.Google Scholar

26 Id.Google Scholar

27 One hundred percent of solo practitioners surveyed, 95 percent of two-lawyer firms, 93 percent of three-lawyer firms, and 96 percent of four-lawyer firms. Id. at 41.Google Scholar

28 Id.Google Scholar

29 Id. at 59.Google Scholar

30 Id. at 56-57.Google Scholar

31 Id. at 57.Google Scholar

32 Id. at 60-61. Some of these lay personnel may be highly trained professionals them-selves, who could charge fees comparable to those the attorney charges. In this sense they are distinguishable from secretaries, clerks, and paralegal assistants. In all cases, however, we may observe lawyerly tasks performed by persons who are not lawyers.Google Scholar

33 Brickman, supra note 15, at 1212.Google Scholar

34 Barlow F. Christensen, Lawyers for People of Moderate Means: Some Problems of Availability of Legal Services 49-53 (Chicago: American Bar Foundation, 1970); Carl M. Selinger, Functional Division of the American Legal Profession: The Legal Paraprofessional, 22 J. Legal Educ. 22, 32, 35 (1969).Google Scholar

35 Christensen, supra note 34, at 49-50.CrossRefGoogle Scholar

36 Quintin Johnstone & Dan Hopson, Jr., Lawyers and Their Work: An Analysis of the Legal Profession in the United States and England 133 (Indianapolis: Bobbs-Merrill Co., 1967).Google Scholar

37 At p. 829 supra.Google Scholar

38 Legal services involving contested matters were, for the most part, excluded from the ULRI project.Google Scholar

39 ULRI Testate Probate System (Salt Lake City: Law Research Institute, 1972).Google Scholar

40 Again, it should be emphasized that the ULRI systems generally do not deal with contested matters.Google Scholar

41 John H. Welborne, Computer Management of a Will Inventory, 15 Jurimetrics J. 1 (1974).Google Scholar

42 CCH COMPUTAX, Inc., for example, has developed a computerized system that can process a variety of federal and state tax returns. Chicago Title and Trust Company provides a computerized estate administration service that includes the preparation of federal estate and Illinois inheritance tax returns. For a description of the use of computers in divorce proceedings by the Cook County Legal Assistance Foundation, see Richard W. McCoy & William A. Chatterton, Computer-assisted Legal Services, Law & Computer Tech., Nov. 1968, at 2; Directory of Jurimetrics Projects, 15 Jurimetrics J. 56, 57-59 (1974); and William A. London & James A. Sprowl, The Computer in the Law Office: Interviewing Clients and Drafting Documents, Le Court (forthcoming). Discussion of the use of computers to draft wills follows.Google Scholar

43 See Layman E. Allen, Beyond Document Retrieval Toward Information Retrieval, 47 Minn. L. Rev. 713 (1963); Rudy Engholm, Logic and Laws: Relief from Statutory Obfuscation, 9 U. Mich. J. L. Ref. 322 (1976).Google Scholar

44 James A. Sprowl, A Form Document Computer System That Is Tied Directly to a Separate Library of Normalized Law 4 (1976).Google Scholar

45 See discussion at pp. 820-21 supra.Google Scholar

46 Walter G. Popp & Bernhard Schlink, JUDITH, a Computer Program to Advise Lawyers in Reasoning a Case, 15 Jurimetrics J. 303, 304 (1975).Google Scholar

47 If the variables are finite in number and can be defined for the computer in advance, then of course the computer is well equipped to handle them even when the number of variables is large and the mathematical computations complex.Google Scholar

48 Johnstone & Hopson, supra note 36, at 312-13.Google Scholar

49 Jerome E. Carlin, Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, N.J.: Rutgers University Press, 1962).Google Scholar

50 Id. at 143-45.Google Scholar

51 David Williams & Paul Black, The $27 Divorce (Denver: Asterisk Press, 1972). The readers are warned that they may need to consult a professional if they find that their divorce raises certain specified tax questions. Id. at 2, 6-7. Even in these matters, however, the authors make it clear that the readers can deal directly with the Internal Revenue Service or with a tax accountant rather than an attorney.Google Scholar

52 Norman F. Dacey, How to Avoid Probate! (New York: Crown Publishers, 1965).Google Scholar

53 Dacey contends, at 329, “While these questions do have legal implications, they are primarily matters of practical individual judgment. Lawyers have no monopoly on good judgment or on the experience necessary to guide people to sound decisions in this area.”Google Scholar

54 Id. at 331.Google Scholar

55 See discussion at pp. 833-34 supra.Google Scholar

56 Carlin, supra note 49, at 207.Google Scholar

57 Johnstonc & Hopson, supra note 36, at 157-58Google Scholar