Can an attorney licensed only in Indiana list under 'attorney' in the Louisville, Kentucky yellow pages with an Indiana office and phone number?

Plain-English summary

The committee addressed whether an attorney licensed only in Indiana, with an office in Indiana, may list under the heading "attorney" in the Louisville, Kentucky yellow pages, and whether Bates v. State Bar of Arizona affects the answer. It answered no to both.

On the listing, the committee drew on older ABA authority treating a telephone directory as a tool for facilitating communication rather than a vehicle for advertising legal services, and noting that a listing outside the directory area of the lawyer's office tends to be advertising and is improper. It read DR 2-101(A) to make the listing misleading and deceptive because the lawyer is not licensed in Kentucky. The committee acknowledged ABA Formal Opinion 316's recognition that in metropolitan areas spanning two states a cross-border listing may sometimes be appropriate, but stressed that practice in each state is governed by that state's law; here the lawyer cannot practice in Kentucky, so the listing remains misleading even though the metropolitan area spans both jurisdictions. It added that EC 3-9 and DR 3-101(B) make practicing law in a jurisdiction where one is not licensed a violation, and that the only possible exception, a directory serving the lawyer's Indiana practice area, did not apply because the Louisville directory most probably does not extend into Indiana.

On Bates, the committee explained that the decision changed the old non-advertising rules reflected in DR 2-101 and was adopted by the Kentucky Supreme Court in January 1978, with SCR 3.135 added on June 1, 1978 to prescribe the permitted avenues of advertising. But it found those advertising rules inapplicable here: the question is really about the practice of law as a matter of law, not ethical advertising. Because the lawyer is not licensed in Kentucky and the listing misleads the public into thinking he is, DR 2-101(A) and DR 3-101(B) resolve it.

Currency note

This opinion was issued in 1980 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can an Indiana-only lawyer list in the Louisville, Kentucky yellow pages?

A: No. The opinion concluded the listing is misleading and deceptive under DR 2-101(A) because the lawyer is not licensed to practice in Kentucky.

Q: Does it matter that Louisville and Indiana share one metropolitan area?

A: Not on these facts. The committee acknowledged ABA Formal Opinion 316 on cross-border metropolitan listings, but said practice in each state is governed by that state's law, and this lawyer cannot practice in Kentucky, so the listing still misleads.

Q: Does Bates v. State Bar of Arizona allow the listing?

A: No. The committee treated the issue as one about the practice of law rather than advertising. Bates changed the advertising rules, but DR 2-101(A) and DR 3-101(B) still bar a listing that implies Kentucky practice the lawyer cannot perform.

Background and rules framework

The opinion applies the Code's prohibition on false or misleading communications (DR 2-101(A)) together with the bar on practicing in a jurisdiction where one is not admitted (DR 3-101(B), EC 3-9), and notes Kentucky's then-new advertising rule SCR 3.135. The modern analogs are Model Rule 7.1 (communications about a lawyer's services must not be false or misleading) and Model Rule 5.5 (unauthorized and multijurisdictional practice).

Citations and references

Rules of Professional Conduct:

• DR 2-101(A) (misleading advertising); DR 3-101(B) and EC 3-9 (unauthorized practice); SCR 3.135 (Kentucky advertising rule); modern analogs Model Rules 7.1 and 5.5

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), commercial-speech protection for lawyer advertising

Other opinions cited:

• ABA Formal Opinions 284 and 316; ABA Informal Opinions 487 and 573(A) (telephone-directory listings across directory areas)

See also

• KBA Ethics Op. E-260: Out-of-State Lawyer Advertising
• KBA Ethics Op. E-261: False Yellow-Pages Listing
• KBA Ethics Op. E-259: False Firm Name, Two Firms

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-229.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-229
Issued: January 1980

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question 1:

May an attorney licensed to practice only in the State of Indiana and maintains an office in the State of Indiana, have a listing in the Louisville, Kentucky yellow pages under the heading, "attorney", with his Indiana office and telephone number below?

Answer 1:

No.

Question 2:

Would Bates v. State Bar of Arizona, (1977), have any effect on the above decision?

Answer 2:

No.

References:

ABA Formal Opinion 284, 316; ABA Informal Opinion 487, 573(A); EC 3-9; DR 2-101(A), 3-101(B); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 (1977); SCR 3.135

OPINION

Question 1
Formal Opinion 284 of the ABA (August 1951), noted the use of a telephone directory for the purpose of facilitating communications between persons using the telephone and not for the purpose of permitting lawyers to advertise for legal services. The use of a directory by an attorney or a law firm outside the directory area of the office or residence of the attorney or firm would tend to be an advertising vehicle, and clearly improper (ABA In formal Opinion 487 (November 13, 1961)).
The listing by the attorney in question in the Louisville phone directory would seem to fit under the ruling of the Committee in ABA Informal Opinion 487. To further this, DR 2-101(A) puts the listing in the category of misleading and deceptive since he is not licensed to practice in the State of Kentucky.

ABA Formal Opinion 316 (January 18, 1967) recognized the fact that the area the attorney practices in makes a difference where the area is of metropolitan origin a lot of legal problems for clients take in both states, thus permitting a listing such as the one here But, the opinion goes one step further when it pointed out that the practice in both states would be determined by each as a matter of law.
Here, the attorney in question cannot practice in Kentucky. His listing is misleading even though the geographical area takes in both jurisdictions.
Looking at EC 3-9 and DR 3-101B), it is clear that the practice of law by an attorney in a jurisdiction he is not permitted to by law or by court order, is a violation of regulations of the profession in that jurisdiction.
The only reprieve this attorney might have is where the out-of-town directory serviced the area or a portion of the area of Indiana the attorney practiced in. See Informal Opinion S73(A) (April 5, 1963). But this is distinguishable since as a matter of law the area the listing is registered in is not one the attorney can practice in, and most probably the Louisville directory does not extend into Indiana
Question 2
Bates v. State Bar of Arizona, 97 S.Ct. 2691 (1977), effectively changes the old rules of non-advertising as recognized in the ABA Code of Professional Responsibility in DR 2-101, but it would have no effect in Question 2. The ruling in Bates was adopted by the Kentucky Supreme Court in January, 1978, and on June 1, 1978, the same Court supplemented the ethical standards in Kentucky by adopting SCR 3.135, which prescribe the express avenues of advertising for the state.
However, upon viewing such rules in comparison with the present question, it seems as though they are inapplicable. The situation presented seems to be more of a concern in the area of the practice of law as a matter of law and not so much that of ethical advertising. The attorney here is not licensed to practice in Kentucky, and his listing is misleading to the public by indicating that he is. Code sections DR 2-101(A) and DR 3-101(B) seem to take care of that.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.