May a lawyer accept a free, unsolicited listing in a 'professional directory' that is distributed only to a few affluent communities?

Plain-English summary

The inquirer asked whether he could be listed in the "Professional Directory" section of a free publication called "The Little Yellow Book," distributed to residents of four affluent communities in a large county, where he neither solicited the listing nor paid for it. The publisher had been declining to list attorneys based on prior Committee opinions.

The Committee treated the publication as a kind of telephone directory and reviewed ABA opinions construing former Canon 7 (now DR 2-102(A)(5)), under which questions about classified directories are resolved by balancing the public interest against the incidental publicity to the individual lawyer, with no undue advantage where the publicity to each lawyer is equal. DR 2-102(A)(5) permits listings in classified sections of telephone directories for the geographical area where the lawyer resides, has offices, or has significant clientele.

Applying that test, the Committee held the listing improper. Because the directory covered only four municipalities and did not list the many other attorneys in the county and contiguous communities, the publicity accorded the chosen group outweighed any public benefit and gave them an advertising advantage not afforded to other lawyers in the vicinity. Since no general public purpose was served, the listing had to be considered a form of advertising, and the fact that the lawyer neither solicited nor paid for it was irrelevant.

Currency note

This opinion was issued in 1975, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates both the 1984 replacement of the Disciplinary Rules by the RPCs and the line of First Amendment decisions, beginning with Bates v. State Bar of Arizona (1977), that reshaped the law of lawyer advertising. The directory-listing concern then in DR 2-102(A)(5) is now treated under RPC 7.1 and RPC 7.2. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer be listed in a free community directory sent only to certain towns?

A: Under this opinion, no. The Committee found the limited circulation gave the listed lawyers an undue advertising advantage, making the listing improper.

Q: Does it matter that the lawyer did not ask for or pay for the listing?

A: No. The Committee held that fact was irrelevant once it concluded the listing served no general public purpose and amounted to advertising.

Q: How was this different from an ordinary telephone-directory listing?

A: Ordinary classified telephone listings cover the geographic area where the lawyer practices and give equal publicity to all listed lawyers. This special directory singled out a chosen group in a limited affluent area, creating the undue advantage.

Background and rules framework

The opinion applied DR 2-102(A)(5) (classified telephone-directory listings for the lawyer's geographic area), read against ABA opinions construing former Canon 7, and the balancing test of public benefit versus individual publicity. In current New Jersey terms, advertising and directory listings are governed by RPC 7.1 and RPC 7.2.

Citations and references

Rules of Professional Conduct:

• DR 2-102(A)(5) (classified telephone-directory listings), as in effect 1975; now MR 7.1 / NJ RPC 7.1 and MR 7.2 / NJ RPC 7.2
• ABA Canon 7 (predecessor advertising canon)

Other opinions cited:

• NJ ACPE Opinion 290, 97 N.J.L.J. 766 (1974)
• ABA Opinion 284 (1951); ABA Opinion 286 (1952); ABA Informal Opinions 63 and 64

See also

• NJ ACPE Op. 309: A Lawyer as Advisor to a Malpractice Newsletter and Seminars
• NJ ACPE Op. 332: Availability as a Consultant in the Law Journal and Lawyers Diary
• NJ ACPE Op. 453: Attorneys Listing Financial Specialties in the Telephone Book

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp298-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

98 N.J.L.J. 126, February 6, 1975

OPINION 298

Classified Listing In Community Directory

The inquirer refers to our Opinion 290, 97 N.J.L.J. 766 (1974), and asks whether it is ethically permissible to have his name listed in a publication entitled "The Little Yellow Book" in a section designated "Professional Directory," in a situation where the attorney (1) does not solicit such listing and (2) is not required to make any payment for the listing. The directory is free to all residents of four affluent residential communities in one of the larger counties of our State. The publisher of the directory has declined to list attorneys on the basis of previous opinions of this Committee.

Much has been written on the subject of telephone listings, in which category we view this directory. The American Bar Association, Committee on Professional Ethics (herein "A.B.A."), has written a number of opinions on the subject and has taken opposite views on different occasions. Its most recent pronouncement is Opinion 284 (1951). These opinions construe former Canons of Professional Ethics, Canon 7 (now DR 2-102(A)(5)). In Opinion 284, the A.B.A. held:

Hence questions relating to the use of classified directory must be resolved by balancing the public interest against the incidental publicity accorded the individual lawyer. Where the publicity accorded each lawyer is the same there can be no undue advantage.

A lawyer may not list himself or permit himself to be listed under any classification other than "lawyer" or "attorney at law," nor can bold-face type or other distinctive listing be made. See A.B.A. Opinion 286 (1952).

The A.B.A. opinions find nothing amiss in a lawyer who has been solicited for "Who's Who" filling out answers to a questionnaire submitted by that publication, provided such answers do not amount to advertising. (A.B.A. Informal Opinions 63 and 64).

In Wise, Legal Ethics 152 (2d ed. 1970), it is said: "The test in all cases is whether the listing provides a service to the client or is a form of advertising." Cf., Drinker, Legal Ethics 246 (1953).

In this case, the attorney neither solicits the listing, nor pays for it. As stated above, the listing encompasses four affluent residential communities in one of the large counties of this State. The clear intent of the publication is to provide residents of these municipalities with a selected list of professional and trades people within the area. It does not list the large number of other attorneys who practice within the county and in contiguous communities, but only those in the restricted area of the four municipalities.

It seems to us that this practice, when viewed in the light of the cited A.B.A. opinions, must be held to be improper since the publicity accorded a certain chosen group of lawyers outweighs any public benefit and provides this group with an advertising advantage not afforded to other lawyers in the immediate vicinity. Since no general public purpose is served, the listing must be considered as a form of advertising. The fact that the lawyer neither solicits nor pays for it is irrelevant.

DR 2-102(A)(5) permits the listing in "classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides."

But, while we place this listing in the class of a telephone directory, it is a special publication manifestly intended to provide citizens in the limited area with information which, in the case of the lawyer's listing, will accord him an undue advantage over other lawyers in the adjacent communities and the county as a whole.