Is a lawyer's enlarged or multi-heading telephone-directory listing improper advertising, and does a lay insurance adjuster who tries workers' compensation cases practice law?
Oklahoma Bar Ethics Opinion 30: Telephone-Directory Display Ads and Lay Adjusters Before the Industrial Commission
Short answer: The Board of Governors concluded that a lawyer's paid telephone-directory listing in distinctive type, with descriptive text and under multiple headings, is advertising barred by Rule 29, and that a lay insurance-company representative who prepares and tries cases before the State Industrial Commission is engaged in the unlawful practice of law.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Oklahoma Bar Association'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.
Plain-English summary
The inquiry posed four questions. The first two asked whether an attorney who buys space in the classified telephone directory to insert descriptive text ("Special attention given to Personal Injury Damage Suits," "Former District Judge," "24 Years General Practice in All Courts," and the like) is advertising in violation of the rules. The Board concluded that inserting such printed matter at the attorney's instance clearly violates Rule 29, which forbids solicitation of business by advertisement. It adopted ABA Opinion 53, which explained that an ordinary directory listing in the same style and size of type as other lawyers is not advertising, but that paying for distinctive type, or for listing under multiple headings designed to inform prospective clients that the lawyer wants their business, becomes advertising and must be condemned.
The third and fourth questions asked whether a lay representative of an insurance company who appears and tries cases before the State Industrial Commission, and the companies and traveling adjusters who do this work, are practicing law. The Board concluded that the Industrial Commission exercises judicial functions, that preparing for and trying a case before it involves interpreting statutes and applying legal knowledge and skill, and so constitutes the practice of law. It followed that the insurance company and its lay representatives were practicing law in violation of Sections 46 and 48 of the State Bar Act, were guilty of a misdemeanor and of contempt, and should be enjoined unless the practice was discontinued.
Currency note
This opinion was issued in 1932, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule and statutes cited here, Rule 29 and Sections 46 and 48 of the State Bar Act, belong to that era. Restrictions on lawyer advertising of the kind applied here were later substantially limited by Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and subsequent First Amendment decisions; Oklahoma Ethics Opinion 310 (1998) cautions that advertising and solicitation opinions predating those changes may be outdated. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.
Common questions
Q: Was an ordinary telephone-directory listing improper advertising for a lawyer in 1932?
A: No. The Board, adopting ABA Opinion 53, said a listing in the usual manner and in the same style and size of type as other lawyers is not advertising.
Q: What made a directory listing cross into improper advertising?
A: The Board held that paying for distinctive type, descriptive text, or listing under multiple headings to inform prospective clients that the lawyer wants their business turns the listing into advertising barred by Rule 29.
Q: Could a lay insurance adjuster try a workers' compensation case before the Industrial Commission?
A: No. The Board concluded the Commission exercises judicial functions and that trying cases before it is the practice of law, so a lay representative doing so violated Sections 46 and 48 of the State Bar Act.
Background and rules framework
The opinion applied Rule 29 of the then-current Oklahoma Rules of Professional Conduct, which barred solicitation of business by advertisement, to the directory question, relying on ABA Opinions 53 and 43 and the Board's own Opinion 15. For the unauthorized-practice question it applied Sections 46 and 48 of the State Bar Act, treating advocacy before the State Industrial Commission as the practice of law because the Commission exercises judicial functions and the work requires statutory interpretation and legal skill. These rules were patterned on the ABA Canons of Professional Ethics in force at the time.
Citations and references
Rules of Professional Conduct:
- Rule 29 (1929 Oklahoma Rules of Professional Conduct): solicitation of business by advertisement is unprofessional.
Statutes:
- Sections 46 and 48, Oklahoma State Bar Act: governing the unlawful practice of law; violation is a misdemeanor.
Cases:
- People ex rel. Illinois State Bar Ass'n v. People's State Bank, 344 Ill. 462, 176 N.E. 901.
- Dworken v. Apartment House Owners, 38 Ohio App. 265, 176 N.E. 577.
Other opinions cited:
- ABA Committee on Professional Ethics, Opinion 53: distinctive-type and multi-heading directory listings are advertising.
- ABA Committee on Professional Ethics, Opinion 43: paying for distinctive-type directory listings is condemned.
- Oklahoma Board of Governors Opinion 15: on the principle involved.
See also
- Okla. Bar Ethics Op. 15: Lawyer Paying for a Newspaper Photograph
- Okla. Bar Ethics Op. 25: Accountants and the Unauthorized Practice of Law
- Okla. Bar Ethics Op. 11: What Constitutes the Practice of Law
Source
- Landing page: https://www.okbar.org/ethics/ethics-opinion-no-30/
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Adopted May 27, 1932
The Board of Governors is in receipt of the following request for an opinion:
"I would like to have your advisory opinion on the following questions:
(1) Is it advertising for an attorney to acquire space in telephone directory, immediately after his name in the attorney's classification section, and insert the following:
'General practitioneers [sic]: Special attention given to Personal Injury Damage Suits. Corporations, contracts and probate law.
………. Former District Judge.'
'24 Years General Practice in All Courts, contracts, liens, titles, corporations, damages, probate.'
(2) If the above is advertising, is it not against the rules of legal ethics and therefore unprofessional?
(3) Is it not practicing law for a layman representative of an insurance company to appear in Industrial Court and represent his company in the trial of the case between the claimant and the respondent, the respondent having no attorney, only the representative of the insurance company, who conducts the trial of the case?
(4) Is it not practicing law for individuals, corporations or partnerships who are not licensed attorneys to advertise for such a business and have one or more representatives who travel over the state adjusting losses and appearing in Industrial Court as it sits in the different cities over the State of Oklahoma, and represent their respective companies in the trial of cases before the industrial court, the said representatives of course, not being licensed attorneys but who take the place of an attorney and fulfills his company's contractual obligation with the assured to furnish an attorney in such cases?"
In response:
As to questions (1) and (2):
The insertion of the printed matter referred to, at the instance of the attorney, is in clear violation of Rule of Professional Conduct No. 29, which forbids the "solicitation of business … by advertisements," and is accordingly condemned.
This matter has been given exhaustive consideration by the American Bar Association Committee on Professional Ethics in opinion No. 53, appearing in the May 1932 issue of the American Bar Association Journal, which opinion is set forth in full in the May, 1932, State Bar Journal. See also opinion No. 43 of the American Bar Association Committee on Professional Ethics, January, 1932, which is reprinted in the June, 1932, State Bar Journal; also the Advisory Opinion of the Board of Governors No. 15, March, 1932, Journal as to principle involved.
In Opinion No. 53 of the American Bar Association's Committee on Professional Ethics, it is said: "As a matter of public convenience, it is desirable that a lawyer have his name listed in the classified telephone directory which the telephone companies authorize. So long as the lawyer's name is listed in such a directory in the usual manner and in the same style and size of type as other names are listed, such listing is not advertising, as there is nothing which will particularly distinguish the name of one lawyer from that of another. Payment for listing of this nature does not alter its character or carry any implications of impropriety. A lawyer who is not a telephone subscriber, but who uses the telephone of the firm with which he is connected or the telephone of some other subscriber, must usually pay for the listing of his name in telephone directories.
The listing of a lawyer's name in such a directory assumes quite a different character when he pays for having his name published in type of a different style or size from that in which the names of other lawyers are listed. In that event it becomes a form of advertising and a lawyer's conduct in causing it to be so published must be condemned (Opinion 43).
For similar reasons, we must disapprove the insertion of a lawyer's name in such directories under various headings. The very purpose of inserting a lawyer's name under these many headings is, as the publisher states in the letter which is quoted in the question, that of "informing prospective clients" that the lawyer desires their business. Therefore, the lawyer who causes his name to be thus inserted is advertising for professional employment. Those who desire to find a lawyer's telephone number or address in a classified telephone directory, will be fully accommodated by its insertion under the general heading which the publishers use to designate the profession."
As to question (3):
The State Industrial Commission, in the exercise of its power and authority to determine all questions in relation to the payment of claims for compensation under the provisions of the Workmen's Compensation Act, exercises judicial functions, and, in the exercise thereof, is a court of justice created under the provisions of Section 1 of Article 7 of the State Constitution.
It is the opinion of the Board of Governors that the preparation for the trial of a cause before the Industrial Commission, and the trial thereof before the Commission, involves the interpretation of statutes both as to the substantive rights of the parties and as to procedure before both the Commission and upon appeal to the Supreme Court, and the application of legal knowledge and skill both as to substantive rights and as to the assertion thereof, and constitutes the practice of law.
It follows that the insurance company and the representative thereof are engaged in the practice of law upon the facts stated in the question in violation of Sections 46 and 48 of the State Bar Act and, accordingly are guilty of the commission of a misdemeanor.
It is also the opinion of the Board of Governors that the parties so engaged are guilty of contempt of court, and subject to citation thereupon, and unless the practice is discontinued, should be enjoined from further engaging in the practice of law.
See People ex rel. Illinois State Bar Ass'n v. People's State Bank, 344 Ill. 462, 176 N.E. 901; Dworken v. Apartment House Owners, 38 Ohio App. 265, 176 N.E. 577.
As to question (4):
This question, insofar as it pertains to the trial of cause before the Industrial Commission, is answered in the answer to question (3). The Company and its representatives should be enjoined from soliciting employment in the practice of law and from engaging therein.
The portion of the question dealing with the adjustment of losses is considered in the answer to question (3).