Opinion 416

Statement of Facts Discussion Conclusion

Canon 2 of the Texas Code of Professional Responsibility, as amended by order of the Supreme Court of Texas on September 1, 1982, would allow advertising in a local law directory under certain circumstances. According to Ethical Consideration (EC) 2-10 under Canon 2, a lawyer may publish or broadcast certain information in any printed media, including legal directories and law lists. The information allowed to be advertised is then listed in seventeen enumerations under EC 2-10. So long as the information communicated in a legal directory or law list comports with EC 2-10 and so long as the information is not false, deceptive, or misleading as prohibited under Disciplinary Rule (DR) 2-101, then a lawyer can advertise in a legal directory or law list. See also Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Law lists have been the subject of several previous opinions by the Professional Ethics Committee of the State Bar of Texas. Ethics Opinion 321 (1966) stated that an attorney may not ethically permit his name to be listed as an attorney in a statewide classified directory which is not an approved list. Ethics Opinion 370 (1974) stated that a lawyer could participate in a "reputable" law list under certain circumstances and that a law list would be presumed reputable if it were certified by the American Bar Association. In light of the teachings of Bates v. State Bar of Arizona, and In re R.M.J., 455 U.S. 191 (1982), although lawyer advertising can be regulated, it is commercial speech and the First and Fourteenth Amendments require that states regulate such speech with care and in a manner no more extensive than reasonably necessary to further substantial state interests. 455 U.S. at 207. Under the circumstances, Texas attorneys may advertise in law lists and those lists do not have to be approved by any bar organization.

DR 2-103(C) also is applicable to this issue. It states that a lawyer may not pay an organization to recommend his employment by a client, except "that a lawyer may advertise in the public media within the limits of DR 2-101 . . . ." The exception would clearly allow a lawyer to advertise in law lists, which are permitted under DR 2-101 and its counterpart under Canon 2, EC 2-10.

Any lawyer who advertises in a legal directory or law list should insure that the legal directory or law list does not provide for recommendation of professional employment as prohibited under DR 2-103. A lawyer should also be careful to follow the dictates of DR 2-101(C) in regard to any representation regarding specialization.

A lawyer may be listed and have his "qualifications" included in a law directory or list which will be promoted as a method consumers may use to select an attorney, provided the information included comports with EC 2-10 and DR 2-101. This opinion is not to be interpreted as approving any particular law list service. It is the responsibility of a participating lawyer to insure that the information in the directory pertaining to the attorney fully complies with all pertinent disciplinary rules. (6-0)