Can a Texas lawyer pay to be listed, with qualifications, in a local law directory promoted to consumers as a way to pick an attorney?

Plain-English summary

The inquiry asked whether a lawyer may be listed, with his qualifications, in a local law directory that lists only lawyers who pay to advertise and that is promoted to consumers as a way to select an attorney.

The Committee explained that Canon 2, as amended in 1982, and EC 2-10 allow a lawyer to publish certain information in printed media, including legal directories and law lists, with the permissible content set out in seventeen enumerations under EC 2-10. So long as the information complies with EC 2-10 and is not false, deceptive, or misleading under DR 2-101, a lawyer may advertise in a directory. The Committee reviewed prior Opinions 321 and 370, which had restricted listings to approved or "reputable" lists, and concluded that in light of Bates v. State Bar of Arizona and In re R.M.J., lawyer advertising is commercial speech that states may regulate only as far as reasonably necessary to serve substantial interests. On that footing, Texas attorneys may advertise in law lists, and the lists need not be approved by any bar organization.

The Committee added that DR 2-103(C), which bars paying an organization to recommend the lawyer's employment, contains an exception for advertising in the public media within DR 2-101, and that exception covers law lists. It cautioned that a participating lawyer must ensure the directory does not itself provide for recommendation of employment prohibited by DR 2-103 and must follow DR 2-101(C) on any specialization representations. By a 6-0 vote, the Committee held that a lawyer may be listed with his qualifications in such a directory, while stressing that the opinion does not approve any particular law list service and that each lawyer is responsible for ensuring his listing complies with all applicable rules.

Currency note

This opinion was issued in 1984, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules on advertising and recommendation of a lawyer's services are in Part VII (Rules 7.02-7.03 and 7.06), with closest ABA analogs Model Rules 7.1 and 7.2. Subsequent rule changes 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 Texas lawyer pay to be listed in a consumer-facing law directory?

A: Per the opinion, yes. The Committee concluded a lawyer may pay to be listed, with qualifications, in a law directory promoted to consumers, provided the listing complies with EC 2-10 and DR 2-101.

Q: Does the directory have to be approved by a bar organization?

A: No. The Committee concluded that, in light of Bates v. State Bar of Arizona and In re R.M.J., Texas attorneys may advertise in law lists and those lists need not be approved by any bar organization, departing from the earlier approved-list requirement.

Q: What must a lawyer watch for before joining such a directory?

A: The Committee cautioned that the lawyer must ensure the directory does not provide for recommendation of employment prohibited by DR 2-103, and must follow DR 2-101(C) on any representation about specialization; each lawyer is responsible for his own listing's compliance.

Background and rules framework

The opinion interprets EC 2-10 (permissible advertising content) and DR 2-101 (no false or misleading communications) of the former Texas Code of Professional Responsibility, together with DR 2-103(C) and DR 2-103 (paying for recommendation of employment) and DR 2-101(C) (specialization statements), against the First Amendment framework of Bates and In re R.M.J. The closest current concepts are Texas Rules 7.02-7.03 and 7.06 and Model Rules 7.1 and 7.2. The analysis turns on treating a law-list listing as protected commercial-speech advertising rather than a prohibited paid recommendation.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising)
• EC 2-10, DR 2-101, DR 2-101(C), DR 2-103(C), DR 2-103, Canon 2, Texas Code of Professional Responsibility

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising as protected commercial speech
• In re R.M.J., 455 U.S. 191 (1982), regulation of lawyer advertising no more extensive than necessary

Other opinions cited:

• Texas Professional Ethics Committee Opinion 321 (1966): listing in an unapproved statewide classified directory not permitted
• Texas Professional Ethics Committee Opinion 370 (1974): participation in a "reputable" law list, presumed reputable if ABA-certified

See also

• TX Ethics Op. 427: Paid Listings on Telephone Book Covers and City Maps
• TX Ethics Op. 428: Listing Fields of Law in a Legal Directory
• TX Ethics Op. 446: Referrals and Fee Payment From a Financial-Planning Organization

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-416/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_416.pdf

Original opinion text

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

QUESTION PRESENTED

Can a lawyer be listed and have his "qualifications" included in a local law directory or law list which will list only those lawyers paying to advertise in the directory and which will be promoted as a method consumers may use to select an attorney?

DISCUSSION

Canon 2 of the Texas Code of Professional Responsibility, as amended by order of the Supreme Court of Texas on September 1, 1982, would allow advertising in a local law directory under certain circumstances. According to Ethical Consideration (EC) 2-10 under Canon 2, a lawyer may publish or broadcast certain information in any printed media, including legal directories and law lists. The information allowed to be advertised is then listed in seventeen enumerations under EC 2-10. So long as the information communicated in a legal directory or law list comports with EC 2-10 and so long as the information is not false, deceptive, or misleading as prohibited under Disciplinary Rule (DR) 2-101, then a lawyer can advertise in a legal directory or law list. See also Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Law lists have been the subject of several previous opinions by the Professional Ethics Committee of the State Bar of Texas. Ethics Opinion 321 (1966) stated that an attorney may not ethically permit his name to be listed as an attorney in a statewide classified directory which is not an approved list. Ethics Opinion 370 (1974) stated that a lawyer could participate in a "reputable" law list under certain circumstances and that a law list would be presumed reputable if it were certified by the American Bar Association. In light of the teachings of Bates v. State Bar of Arizona, and In re R.M.J., 455 U.S. 191 (1982), although lawyer advertising can be regulated, it is commercial speech and the First and Fourteenth Amendments require that states regulate such speech with care and in a manner no more extensive than reasonably necessary to further substantial state interests. 455 U.S. at 207. Under the circumstances, Texas attorneys may advertise in law lists and those lists do not have to be approved by any bar organization.

DR 2-103(C) also is applicable to this issue. It states that a lawyer may not pay an organization to recommend his employment by a client, except "that a lawyer may advertise in the public media within the limits of DR 2-101 . . . ." The exception would clearly allow a lawyer to advertise in law lists, which are permitted under DR 2-101 and its counterpart under Canon 2, EC 2-10.

Any lawyer who advertises in a legal directory or law list should insure that the legal directory or law list does not provide for recommendation of professional employment as prohibited under DR 2-103. A lawyer should also be careful to follow the dictates of DR 2-101(C) in regard to any representation regarding specialization.

A lawyer may be listed and have his "qualifications" included in a law directory or list which will be promoted as a method consumers may use to select an attorney, provided the information included comports with EC 2-10 and DR 2-101. This opinion is not to be interpreted as approving any particular law list service. It is the responsibility of a participating lawyer to insure that the information in the directory pertaining to the attorney fully complies with all pertinent disciplinary rules. (6-0)

CONCLUSION

A lawyer may be listed and have his "qualifications" included in a law directory or list which will be promoted as a method consumers may use to select an attorney, provided the information included comports with EC 2-10 and DR 2-101. This opinion is not to be interpreted as approving any particular law list service. It is the responsibility of a participating lawyer to insure that the information in the directory pertaining to the attorney fully complies with all pertinent disciplinary rules. (6-0)

Tex. Comm. On Professional Ethics, Op. 416 (1984)