Opinion 427

Statement of Facts Discussion Conclusion

Disciplinary Rule ("DR") 2-103(C) provides that "[a] a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that a lawyer may advertise in the public media within the limits of DR 2-101, so long as the advertising communication does not take place in person or by telephone." DR 2- 101(A) provides that "[a] lawyer shall not make, on behalf of himself, his partner, associate, or any other lawyer, any false or misleading communication about the lawyer or the lawyer's services."

In the opinion of the Committee, printed plastic telephone book covers and maps that include the names, addresses and telephone numbers of lawyers who have paid to have their names included in such materials may be advertising materials involving "public media" and therefore may be permissible under the Texas Code of Professional Responsibility if the materials are not misleading. However, such materials would only be permitted advertising materials if the materials were understood by recipients to be advertisements by the persons listed rather than disinterested recommendations by the company providing the telephone book cover and map. If the average recipient of the book cover and map interpreted the materials as disinterested recommendations of providers of legal services or as information about the only providers of legal services in the community, the materials would be misleading and a lawyer's payment to place his name in such materials would be a violation of DR 2-103(C) and DR 2- 101(A).

Thus, to avoid a violation of the Texas Code of Professional Responsibility, a lawyer making payment for inclusion of his name in such materials should ensure that the materials are not misunderstood by recipients as a disinterested recommendation or as providing an exclusive list of lawyers in the community. If a recipient of the materials might otherwise be uncertain as to whether the materials were advertising by the companies and individuals listed, a lawyer participating in such an arrangement would be required to ensure that the materials adequately disclosed to recipients that the inclusion of the lawyer's name in the materials was advertising for which the lawyer had made payment.

Assuming that the advertising nature of the listing of the lawyer in the materials is sufficiently clear to recipients, the printed plastic telephone book covers and maps would in the opinion of the Committee be advertising materials involving "public media" that would be permitted subject to the requirements that a lawyer's advertising not be misleading or otherwise in violation of DR 2-101. The materials in question are mass-produced rather than individualized communications and hence the materials remain subject to the rules applicable to advertising even though such materials are mailed to named individual recipients. See Texas Professional Ethics Committee Opinion 420. Moreover, the fact that such mass-produced materials are mailed only to certain categories of persons -- in this case to new residents of a community -- does not alter the fact that the materials are instruments of mass communication subject to the advertising rules of DR 2-101.

Under the Texas Code of Professional Responsibility, participation by an attorney in a program to mail to new residents of a community printed in plastic telephone book covers and maps listing the names and locations of various providers of goods and services in the community would be subject to the requirements set forth in DR 2-101 that are generally applicable to advertising by lawyers provided that the listing of the attorney is readily perceived by recipients to be paid advertising by the lawyer rather than a disinterested recommendation of the attorney by the producer of the materials. If the telephone book cover and map are otherwise permissible as advertising that meets the requirements of DR 2-101, it is permissible for such materials to be mailed in packages addressed by name to new residents of a community. (9-0)