1 Sometimes a distinction is made between group legal services and prepaid legal services. The former are said to be services provided by a well-defined group to its members in relation to some special interest of the group (legal services often being only one of the group's activities dealing with that special interest), usually through a lawyer or lawyers selected by the group. Under this analysis, prepaid legal services are seen to be more in the nature of insurance, with the group sometimes (but not always) being more amorphous in nature, the services often (but not always) being general and not limited to a special group interest, and with the services often (though not always) being performed by lawyers on an open panel—i.e., lawyers chosen by the clients from among any members of the bar who choose to participate. The distinction has analytical validity and practical utility, but it tends to obscure the essential similarities in the two forms of service. They are both group efforts, using insurance principles, to provide legal services to individual members. But the point made above is valid even under the narrower view of group legal services. The bar seems to have accepted the constitutionally protected status of group legal services. See American Bar Association, Code of Professional Responsibility, DR 2–103 (1977). See also NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of R.R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); UMW Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217 (1967).Google Scholar

2 California is the acknowledged leader, but the movement has spread rapidly since California's certification system was inaugurated in 1971. For example, according to the most recent count, specialization programs have either been adopted or are presently under consideration in 38 states. Data supplied by Legal Services Division, American Bar Association.Google Scholar

3 See Barlow F. Christensen, Bringing Lawyers and Clients Together (Chicago: American Bar Foundation, 1968); id., Lawyers for People of Moderate Means: Some Problems of Availability of Legal Services 128–72 (Chicago: American Bar Foundation, 1970). Cf. Note, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181 (1972).Google Scholar

4 See Carlin, Paul V., The Advancing State of the Art of Lawyer Referral Service, Baylor L. Rev. 30 643 (1978).Google Scholar

5 E.g., legal clinics, lawyer directories, and the training and use of paralegal personnel.Google Scholar

6 They range all the way from public information programs designed to educate the public about law, legal rights, and lawyers (what might be termed a “public awareness” function) to the actual provision of legal services to people with problems (a “direct service” function).Google Scholar

7 Looked at from the institutional perspective, the diagnostic function is referred to by some legal service agencies as “screening.” This view of it no doubt has some bearing on the way in which the function is performed.Google Scholar

8 E.g., Consumers Union v. American Bar Ass'n, 427 F. Supp. 506, 519–23, 525–31 (E.D. Va. 1976).Google Scholar

9 This is perhaps not the place for an extended discussion of the issue of client choice. It might be noted, however, that the most recent developments in the field of legal services, especially in the fields of advertising and lawyer directories, are based in part on the principle that clients should have a greater part than heretofore in determining their own affairs. For an early discussion demonstrating the value of client participation in professional decisions, see Douglas E. Rosenthal, Client Participation in Professional Decision: The Lawyer-Client Relationship in Personal Injury Cases (Ph.D. diss., Yale University, 1970).Google Scholar

10 Data, current as of April 26, 1979, supplied by Legal Services Division, American Bar Association.Google Scholar

11 Id.Google Scholar

12 Id. Twenty-two other states have bar committees that are actively considering plans for regulating specialization.Google Scholar

13 See Harry Wright III, It's Time for Specialization in Law Practice: Against, Fla. B.J., Jan. 1971, at 12.Google Scholar

14 David R. Brink, Let's Take Specialization Apart, 62 A.B.A.J. 191 (1976); Chesterfield H. Smith, Increased Availability of Legal Services Through Specialization, 40 Fla. B.J. 1219 (1966).Google Scholar

15 As used here, “paternalistic” is not meant to carry any pejorative connotations.Google Scholar

16 What an intriguing possibility this suggests. What would be the result if, instead of (or perhaps in addition to) trying to evaluate and certify special competence, the certifying authority were to make public the test scores, digested information about experience (including the numbers and kinds of cases handled), and fee information about lawyers seeking recognition as specialists?Google Scholar

17 This deficiency in certificates of special competence suggests another interesting question. Might not the public be better served if certificates of special competence were to be issued on some sort of graduated basis, denoting different degrees of competence—apprentice, journeyman, and master specialist, perhaps? Maybe prospective clients would shun the lower grades in favor of the highest level of proficiency, although the availability of fee information for individual lawyers might counteract such a tendency. Many clients might well prefer an apprentice specialist at a low fee; others might feel that their problems call for a journeyman specialist at a middle-range fee; and some might opt for a master specialist at a high fee.Google Scholar

18 The attitude of many lawyers about providing the public with information, particularly information about fees, is well captured in the following judicial pronouncement: “Any legal problem worth seeing a lawyer about is worth inquiring in person as to the charge, among other things, before choosing a lawyer.” Consumers Union v. American Bar Ass'n, 427 F. Supp. 506, 530 (E.D. Va. 1976) (Warriner, J., dissenting). This totally unrealistic premise, on which much opposition by lawyers to the publication of fee information is based, overlooks a very important fact. The prospective client often does not know whether his problem is worth seeing a lawyer about—or whether his problem is even legal—and his conclusion as to whether or not his problem is worth seeing a lawyer about must necessarily be based in part on his estimate of what seeing a lawyer—even for a first consultation—will cost.Google Scholar

19 For a discussion of the traditional ethical proscriptions on lawyer advertising, see Christensen, Bringing, supra note 3.Google Scholar

20 Bates v. State Bar, 433 U.S. 350 (1977). See also Consumers Union v. American Bar Ass'n, 427 F. Supp. 506 (E.D. Va. 1976); vacated and remanded on appeal, 433 U.S. 917 (1977); No. 75–0105-R (E.D. Va., May 8, 1979). At its August 1977 meeting, the House of Delegates of the American Bar Association amended its Code of Professional Responsibility to conform to the Bates decision. See DR 2–102(A).Google Scholar

21 See Hobbs, Charles A., Lawyer Advertising: A Good Beginning but Not Enough, A.B.A.J. 62 735 (1976).Google Scholar

22 Id.Google Scholar

23 This may not continue to be so, of course, should solicitation by lawyers also be found to be a constitutionally protected activity. The disciplinary rules of the District of Columbia Bar have been amended to permit solicitation, and the California State Bar is considering such action. Barriers Against Solicitation Crumbling, 64 A.B.A.J. 1492 (1978). See also W. Randolph Baker, Do Lawyers Have a First Amendment Right to Solicit? 64 A.B.A.J. 364 (1978); In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).Google Scholar

24 For example, the forerunner of the present Martindale-Hubbell Law Directory (Summit, N.J.: Martindale-Hubbell, Inc.) first began publication in 1868.Google Scholar

25 For a concise description of law lists, see Robert A. Sprecher, Ethical Advertising and Solicitation: Law Lists, 53 A.B.A.J. 121 (1967).Google Scholar

26 For a critique of the rationale that in the past exempted law lists from the traditional proscriptions against lawyer advertising, see Christensen, Lawyers, supra note 3, at 165–71.Google Scholar

27 See American Bar Assocation Standing Committee on Lawyer Referral Services, Statement of Standards and Practices for a Lawyer Referral Service IV.4.1–4.11 (mimeographed). The most recent information indicates that some 30 bar associations publish such directories. American Bar Association, Survey of Lawyer Referral Services, 1978 (mimeographed).Google Scholar

28 District of Columbia Bar, Lawyer Directory, 1977–78 (Washington, D.C.: District of Columbia Bar, 1977). This directory is published annually.Google Scholar

29 Few of the bar associations that publish directories appear to follow the lead of the District of Columbia Bar in this regard. Only 7 of the 30 make any effort to distribute their directories to libraries, public agencies, or the public. American Bar Association, supra note 27.Google Scholar

30 District of Columbia Bar, supra note 28.Google Scholar

31 Consumers Union v. American Bar Ass'n, 427 F. Supp. 506 (E.D. Va. 1976); vacated and remanded on appeal, 433 U.S. 917 (1977); No. 75–0105-R (E.D. Va., May 8, 1979).Google Scholar

32 See note 29 supra.Google Scholar

33 In 1978, 294 referral services were in operation. The 188 that responded to the ABA survey reported 919,464 requests for assistance and 610,928 people referred to lawyers. American Bar Association Survey, supra note 27.Google Scholar

34 Ordinarily, a modest fee is specified for the first consultation with a lawyer. Some referral programs make provision for reduced fee service in appropriate cases.Google Scholar

35 Some referral services require the client to come to the referral office in person; others handle referrals by telephone; a few do both.Google Scholar

36 In some instances, the referral officer is a lawyer; in many others, a specially trained lay person may handle the referrals; in others, the person who does the referring may be simply a bar association secretary.Google Scholar

37 When the referral service utilizes only a general panel of lawyers from which to make referrals, the lawyer chosen is typically the next name on the general list, although some services permit the client to choose from the next three on the list. Many referral services do maintain separate panels of lawyers for the various fields of law practice. Where this is so, the referral is usually made to the next lawyer on the appropriate special panel, although, again, in some instances the client is allowed to choose from three names.Google Scholar

38 The above description is but the briefest of sketches. For a more complete description of such programs, and particularly a progressive view of how it should operate, see Carlin, supra note 4. See also American Bar Association, supra note 27; Barlow F. Christensen, The Lawyer Referral Service (Chicago: American Bar Foundation, 1967); id., Lawyers, supra note 3, at 173–204.Google Scholar

39 Unfortunately, there are still all too many referral services that are marginal operations, failing to meet ABA standards and not even approximating the model described above. Some of them do not appear to perform any significant function. See generally American Bar Association, Survey, supra note 27.Google Scholar

40 As noted earlier (supra note 37), some referral services do permit the prospective client to choose from among the next three names on the list, but the value of this option is diminished by the limited amount of information given to the client as a basis on which to make the choice.Google Scholar

41 Institutions like the British Citizens' Advice Bureaus, should they be adopted in this country, would be an obviously appropriate place for the use of lawyer directories. See Alfred J. Kahn et al., Neighborhood Information Centers: A Study and Some Proposals (New York: Columbia University School of Social Work, 1966). See also Dolores Korman Sloviter, Let's Look at Citizens Advice Bureaux, 65 A.B.A.J. 567 (1979).Google Scholar

42 For a complete description, see Comprehensive Plan for the Lawyer Referral and Information Service of the District of Columbia Bar (unpublished) (available from the District of Columbia Bar, 1426 H Street, N.W., Suite 840, Washington, D.C. 20005).Google Scholar

43 Some referral services do have reduced fee arrangements for clients who, by reason of limited means, are deemed unable to pay full fees, but the example above presupposes a client who cannot qualify for reduced fees but who nevertheless has a legitimate interest in having his legal work done at the lowest possible cost.Google Scholar

44 Supra note 2, at 20. See also American Bar Association, supra note 27, at VII.7.2.Google Scholar

45 It perhaps should be noted, however, that the constitutional and legal theories underlying the so-called affirmative action programs in education and elsewhere do just that. They draw a line between discrimination rooted in racial and other prejudices, which is impermissible, and discrimination intended to promote socially desirable goals, which is permissible. The Bakke case (Regents of the University of California v. Bakke, 438 U.S. 265 (1978)) suggests that the line may not be so easily drawn.Google Scholar

46 The total estimated cost of operating the District of Columbia Lawyer Referral and Information Service for its first year was $50,930. Approximately two-thirds of this amount ($36,000) was expected to come from attorney registration fees and client consultation fees, leaving $14,930 to come from the District of Columbia Bar itself. Comprehensive Plan, supra note 42, at 34. As the program expands and as inflation takes its toll, the cost of operating the service can be expected to grow substantially.Google Scholar