Bates v. State Bar of Arizona

*386 Mr. Chief Justice Burger,

concurring in part and dissenting in part.

I am in general agreement with Mr. Justice Powell’s analysis and with Part II of the Court’s opinion. I particularly agree with Mr. Justice Powell’s statement that “today’s decision will effect profound changes in the practice of law.” Post, at 389. Although the exact effect of those changes cannot now be known, I fear that they will be injurious to those whom the ban on legal advertising was designed to protect — the members of the general public in need of legal services.

Some Members of the Court apparently believe that the present case is controlled by our holding one year ago in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748 (1976). However, I had thought that we made most explicit that our holding there rested on the fact that the advertisement of standardized, prepackaged, name-brand drugs was at issue. Id., at 773 n. 25. In that context, the prohibition on price advertising, which had served a useful function in the days of individually compounded medicines, was no longer tied to the conditions which had given it birth. The same cannot be said with respect to legal services which, by necessity, must vary greatly from case to case. Indeed, I find it difficult, if not impossible, to identify categories of legal problems or services which are fungible in nature. For example, Mr. Justice Powell persuasively demonstrates the fallacy of any notion that even an uncontested divorce can be “standard.” Post, at 392-394. A “reasonable charge” for such a divorce could be $195, as the appellants wish to advertise, or it could reasonably be a great deal more, depending on such variables as child custody, alimony, support, or any property settlement. Because legal services can rarely, if ever, be “standardized” and because potential clients rarely know in advance what services they do in fact need, price advertising can never give the public an accurate picture on which to base' its selection of an attorney. Indeed, in the context of legal *387 services, such incomplete information could be worse than no information at all. 1 It could become a trap for the unwary.

The Court’s opinion largely disregards these facts on the unsupported assumptions that attorneys will not advertise anything but “routine” services — which the Court totally fails to identify or define — or, if they do advertise, that the bar and the courts will be able to protect the public from those few practitioners who abuse their trust. The former notion is highly speculative and, of course, does nothing to solve the problems that this decision will create; as to the latter, the existing administrative machinery of both the profession and the courts has proved wholly inadequate to police the profession effectively. See ABA Special Committee On Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement (1970). To impose the enormous new regulatory burdens called for by the Court’s decision on the presently deficient machinery of the bar and courts is unrealistic; it is almost predictable that it will create problems of unmanageable proportions. The Court thus takes a “great leap” into an unexplored, sensitive regulatory area where the legal profession and the courts have not yet learned to crawl, let alone stand up or walk. In my view, there is no need for this hasty plunge into a problem where not even the wisest of experts — if such experts exist — can move with sure steps.

*388 To be sure, the public needs information concerning attorneys, their work, and their fees. At the same time, the public needs protection from the unscrupulous or the incompetent practitioner anxious to prey on the uninformed. It seems, to me that these twin goals can best be served by permitting the organized bar to experiment with and perfect programs which would announce to the public the probable range of fees for specifically defined services and thus give putative clients some idea of potential cost liability when seeking out legal assistance. 2 However, even such programs should be confined to the known and knowable, e. g., the truly “routine” uncontested divorce which is defined to exclude any dispute over alimony, property rights, child custody or support, and should make clear to the public that the actual fee charged in any given case will vary according to the individual circumstances involved, see ABA Code of Professional Responsibility DR 2-106 (B) (1976), in order to insure that the expectations of clients are not unduly inflated. Accompanying any reform of this nature must be some type of effective administrative procedure to hear and resolve the grievances and complaints of disappointed clients.

Unfortunately, the legal profession in the past has approached solutions for the protection of the public with too much caution, and, as a result, too little progress has been made. However, as Mr. Justice Powell points out, post, at 398-399, the organized bar has recently made some reforms in this sensitive area and more appear to be in the offing. Rather than allowing these efforts to bear fruit, the Court today opts for a Draconian “solution” which I believe will only breed more problems than it can conceivably resolve.

The publication of such information by the organized bar would create no conflict with our holding in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), so long as attorneys were under no obligation to charge within the range of fees described.