March 28, 1973
Ethics Opinon 1973-6
SUBJECT: LISTINGS IN CITY DIRECTORY
Several attorneys maintaining offices in the general area of East San Diego wish to be listed in the East San Diego Blue Book, a city directory covering the general area in which their offices are located. Many San Diego attorneys are currently listed in city directories similar to the one in issue. May the attorneys ethically be listed in such a directory?
Yes. An attorney or firm may be listed in the alphabetical and classified portions of a city directory if his primary motivation is to render a service to his clientele, and, provided: that no fee is paid by the attorney or firm for the listing; that all attorneys and firms maintaining offices within the geographical area of the directory are listed; that only those attorneys and firms having offices, as opposed to residences, within the geographical limits are listed; and that no boldfaced or other distinctive form, which gives special emphasis to the attorney or firm, is used.
STATUTES AND CANONS
The subject question is covered under both Rule 2 of the Rules of Professional Conduct of the State Bar of California and Disciplinary Rule DR 2-102 of the Code of Professional Responsibility of the American Bar Association. Under Rule 2, Section A, a member of the State Bar shall not solicit professional employment by advertisement or otherwise. Under Section B of this rule, nothing in this rule shall be deemed to prevent listing in the classified section of a telephone or city directory provided, however, that a listing in a telephone or city directory shall not be in distinctive type, style or form or contain anything other than the name, address, telephone number and designation as an attorney at law, and shall not appear under any classification or heading other than a single one used to designate attorneys at law.
Under DR 2-102, a lawyer or a law firm shall not use telephone directory listings except that the following may be used if it is in dignified form:
"(5) A listing of the office of a lawyer or law firm in the city directory of the city in which his or the firm's office is located; but the listing may only give the name of the lawyer or law firm, the fact that he is a lawyer, addresses, and telephone numbers. The listing shall not be in distinctive form or type. A law firm may have a listing in the firm name separate from that of its members and associates. The listing in the classified section shall not be under a heading or classification other than 'Attorneys' or 'Lawyers'".
The Committee on Professional Ethics and Grievances of the American Bar Association has considered questions involving listing in both telephone and city directories which relate directly to the question in issue. In Formal Opinion No. 313, which issued on December 11, 1964, the committee held that a lawyer may be listed in a classified section of a city directory only if all lawyers in the city are listed and when no charge is made therefor. If he is a member of a law firm, both the firm and the individual attorney may be listed separately. Such listings should not be in boldface or large type, and the address should not be lengthened to make the listing occupy more space. Interpreting Canon 27 of the old Canons of Professional Ethics, which is now incorporated under Disciplinary Rule DR 2-102 of the new Code of Professional Responsibility of the American Bar Association (effective January 1, 1970), the committee was careful to distinguish a city directory from a telephone directory. It argued that a city directory is a business in itself, whereas a telephone directory is issued only as an adjunct to the business of selling telephone services. The committee referenced Formal Opinion No. 295 in stating: "A guiding factor is whether the listing provides a service to the client or is a form of advertising." Referencing formal Opinion No. 284, the committee said:
"Hence the question relating to the use of a classified directory must be resolved by balancing the public interest against the incidental publicity accorded the lawyer."
That opinion also held that a lawyer could not with propriety have his name listed in distinctive type in a telephone directory or a city directory.
In Formal Opinion No. 313, the committee went on to conclude that if a lawyer is a member of a law firm, both the firm and the individual lawyer may be listed, even if there is a charge made for the additional listing. The listing should consist only of the lawyer's name, address and telephone number. The address should not be lengthened so as to make the listing occupy more space than a reasonable minimum.
Under Opinion No. 1967-7 dated March 28, 1967, the Committee on Professional Ethics of the State Bar of California considered the propriety of listings by an attorney in telephone directories outside the geographical area in which the attorney maintains his office. In resolving this question, the Committee expressed this policy:
"It seems to this committee that the questions to be decided require consideration of both the situation and the motivation of the lawyer in placing the listing."
The committee here decided that if a lawyer was providing the listing as a convenience to the public then no impropriety arises. If the lawyer had not practiced or had no professional contacts in that community, then the listing would be an improper attempt to advertise rather than an attempt to facilitate communication between persons using the telephone.
Although no informal opinion by the American Bar Association has been issued which directly covers the subject question, several opinions significantly relate to it.
The Committee in Informal Decision A-167 held that a lawyer might permit his name to be included in a roster of lawyers in a community directory which is published by the local chamber of commerce. Informal Decisions A-169 and C-456 held that he could not pay to have his name listed in such a publication. Informal Opinion No. C-258 permits an attorney to list in a membership directory of the local chamber of commerce or civic club, his name, the fact that he is a lawyer, his home and business address and telephone numbers, and name of his firm, if any, provided that he does not pay for the listing.
Although nothing in either Rule 2 of the Rules of Professional Conduct or DR 2-102 of the Rules of Professional Responsibility requires that attorneys are precluded from paying for listings in city directories, the formal and informal opinions of the American Bar Association Committee on Professional Ethics and Grievances clearly arrive at this conclusion.
The decision, however, appears to be based on the premise that city directories are a business in themselves, hence any listing therein is primarily for advertisement purposes. In contrast, the committee feels that telephone directories are issued only as an adjunct to telephone service and consequently serve primarily for purposes of locating the attorney. There exists a significant possibility that within a metropolitan area the size of San Diego, members of the public would wish to locate an attorney within their own geographical area and would encounter difficulty by referencing the yellow pages of the telephone directory. Hence, a city directory for the local area in which they reside or conduct business would prove to be a much more practical way of locating the attorney. As such, it appears to be an insignificant difference whether the attorney pays for a listing in the telephone directory or the privately published city directory. However, the American Bar Association Committee to this date has not accepted this argument and holds that attorneys may not pay for listings in the city directory. All other aspects of the subject question are clearly covered by the formal and informal opinions or rules themselves.
EDITOR'S NOTE: This opinion was reviewed on 9/16/76, and found to express the current state of the law. The State Bar of California has issued proposed changes of the Rules regarding advertising. If the amendments are approved by the Supreme Court, this opinion may be superseded. Effective 1/1/75, California Rule 2 is found in Rules 2-101 through 2-1.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.