OHBPC 1988-12-16

Can a lawyer pay to be listed in a 'Talking Yellow Pages' service that gives callers attorney names by random computer selection?

Short answer: The Board concluded that a lawyer could advertise in the Talking Yellow Pages, because under DR 2-101(B)'s catchall it was a permitted form of advertising and, since the service did not recommend or endorse particular attorneys and selected names at random, it was not a barred referral arrangement under DR 2-103(C); all such advertising still had to avoid false or misleading claims. The opinion interprets the former Ohio Code of Professional Responsibility as it then stood and is flagged not current.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Ohio BPC Opinion 88-027: Advertising in the Talking Yellow Pages

Short answer: The Board concluded that a lawyer could advertise in the Talking Yellow Pages, because it was a permitted form of advertising under DR 2-101(B)'s catchall and, since the service did not recommend or endorse particular attorneys and selected names at random, it was not a barred referral arrangement under DR 2-103(C).

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Currency note

The Ohio Board of Professional Conduct flags this opinion as not current, because DR 2-101 and DR 2-103 were amended after it issued (DR 2-101 effective January 1, 1993 and August 16, 1993; DR 2-103 effective July 1, 1996). It was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 7.1 through 7.3 on advertising and referral arrangements) before relying on any specific rule mentioned here.

Plain-English summary

A lawyer asked whether an attorney could advertise in the Talking Yellow Pages (TYP), a service where a consumer telephones a representative, asks for providers of a particular service in a geographic area, and the computer selects names at random. The TYP charged a flat monthly rate, represented that it would not recommend or endorse particular attorneys, and would give the names of non-subscribing attorneys if too few subscribers matched the criteria.

The Board concluded that under DR 2-101(B), which permits a lawyer to publish information to facilitate informed selection through print, mail, radio, television, "or otherwise," a lawyer could advertise in the TYP. It acknowledged the service did not fit neatly into the sanctioned categories but reasoned that, given the U.S. Supreme Court's liberalization of lawyer advertising (citing Shapero v. Kentucky Bar Association), the advertising should be permitted, subject to DR 2-101(A)'s bar on false, fraudulent, misleading, or deceptive claims. Addressing the argument that subscribing would violate DR 2-103(C) (requesting an organization to recommend a lawyer's services), the Board concluded the rule should not bar TYP advertising, because the service would not recommend or endorse particular attorneys, the names were selected randomly, and DR 2-103(E) allows a lawyer to accept employment in response to his own advertising. It noted the TYP representatives should decline to give additional comments about a subscribing attorney, might include a disclaimer of non-endorsement, and that the attorney should keep a copy of all advertisements under DR 2-101(D). The Board added that it was not authorized to address the constitutional issues raised.

Common questions

Q: Could a lawyer pay to be listed in the Talking Yellow Pages?

A: Yes. The Board concluded the TYP was a permitted form of advertising under DR 2-101(B)'s catchall, subject to the bar on false or misleading claims.

Q: Was the TYP a prohibited referral service under DR 2-103(C)?

A: No. The Board concluded DR 2-103(C) did not bar it, because the service would not recommend or endorse particular attorneys, names were selected randomly, and DR 2-103(E) permits accepting employment from one's own advertising.

Q: Did any cautions apply to the service?

A: Yes. The Board indicated the TYP representatives should decline to give extra comments about an attorney, might add a non-endorsement disclaimer, and that the attorney should keep a copy of all advertisements under DR 2-101(D).

Background and rules framework

The opinion applies former DR 2-101(A), (B), and (D) (advertising) and DR 2-103(C) and (E) (recommendation of professional employment) of the Ohio Code of Professional Responsibility, read against the U.S. Supreme Court's advertising decisions. The current parallels on advertising and referral arrangements are Ohio Prof. Cond. R. 7.1, 7.2, and 7.3, with Model Rules 7.1 and 7.2.

Citations and references

Rules of Professional Conduct:

Former DR 2-101(A), (B), (D), Ohio Code of Professional Responsibility
Former DR 2-103(C), (E), Ohio Code of Professional Responsibility

Cases:

Shapero v. Kentucky Bar Association, 56 U.S.L.W. 4532 (1988), liberalization of lawyer advertising

Other opinions cited:

Arizona State Bar Committee on Rules and Professional Conduct, Op. 84-13: TYP-type listing services and recordkeeping
Kentucky Bar Association Ethics and Unauthorized Practice Committee, Op. E-309: referral-service argument under DR 2-103(C)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-027.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 88-27
Issued December 16, 1988

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

[Not current-subsequent rule amendments to DR 2-101, eff. Jan. 1, 1993 and Aug. 16, 1993; DR 2-103, eff. Jul. 1, 1996.]

SYLLABUS: A lawyer is permitted to advertise in the Talking Yellow Pages.

OPINION: We have before us your request for an opinion on whether an attorney may advertise in the Talking Yellow Pages (TYP). The TYP is a service whereby a consumer telephones the TYP's representative and asks for the names of persons providing a particular type of service in a specific geographic area. The computer will pull up six names by random selection and show them on the screen in groups of two.

According to your request letter, representatives of the TYP have solicited attorneys to subscribe as providers with this listing service. The TYP would charge a flat rate per month for the listing. The TYP's personnel have represented to you that they will not recommend or endorse the services of particular attorneys. The subscribing attorneys would have to indicate those areas of practice for which they are making themselves available to the public. A consumer would be given the names of attorneys who are in close geographic proximity and who are listed as being available to practice in the legal area which the consumer has requested. As your letter indicates, if an insufficient number of subscribing attorneys are listed with the given criteria, the operator would give the name of non-subscribing attorneys to the consumer.

In our opinion, under DR 2-101(B), a lawyer is permitted to advertise in the Talking Yellow Pages. DR 2-101(B) states that,

[i]n order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-102 through DR 2-105, information in print media, in written or printed material distributed to consumers through the mail or otherwise; or over radio or television...

We agree that the TYP service "does not exactly fit into any of the sanctioned classifications of DR 2-101(B)..." Arizona State Bar Committee on Rules and Professional Conduct, Op. 84-13. However, we assert that given the recent liberalization regarding lawyer advertising by the United States Supreme Court, advertising in the Talking Yellow Pages should be permitted. See, e.g., Shapero v. Kentucky Bar Association, 56 U.S.L.W. 4532, 4 Law. Man. Prof. Conduct 180 (1988).

As a reminder, all forms of lawyer advertising must not include any false, fraudulent, misleading, or deceptive statements or claims. Code of Professional Responsibility, DR 2-101(A). This would include advertising in the Talking Yellow Pages.

Arguments have been made that it is unethical, under DR 2-103(C), for a lawyer to subscribe to the Talking Yellow Pages. See, e.g., Kentucky Bar Association Ethics and Unauthorized Practice Committee Op. E-309. Disciplinary Rule 2-103(C) prohibits lawyer's from requesting a person or organization to recommend or promote the use of his or her services unless the lawyer referral service is sponsored by a bar association.

We believe DR 2-103(C) should not prohibit a lawyer from advertising in the TYP. As stated in your request letter, the TYP will not recommend or endorse the services of particular attorneys. Moreover, although technically the TYP service could be considered a referral service, it is primarily a form of advertising. In this regard, DR 2-103(E) states that nothing in DR 2-103 "prohibits a lawyer from accepting employment received in response to his own advertising, provided such advertising is in compliance with DR 2-101." Another factor to consider is that, the computer randomly pulls up the name of attorneys, thereby eliminating the risk involved in a person determining which attorneys names to give.

Of course, the TYP's representative should not offer and should, if asked, decline to give any additional comments regarding a subscribing attorney. They may also be well advised to include a disclaimer that they are not recommending or endorsing any particular attorney. In addition, the attorney should maintain a copy of all advertisements pursuant to DR 2-101(D). Arizona State Bar Committee on Rules and Professional Conduct, Op. 84-13. "The Talking Yellow Pages should also maintain a copy of the listing that could serve as an independent verification." Id.

There are many constitutional issues involved in your request which we are not authorized to address.

In conclusion, it is our opinion and you are so advised that an attorney may ethically subscribe to the Talking Yellow Pages.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.