Can a Texas lawyer pay a company to print the firm's name under a 'Lawyers' heading on plastic phone book covers and city maps mailed to new residents?

Plain-English summary

The inquiry asked whether a law firm may pay a private company to include the firm's name, address, and telephone number under a "Lawyers" or "Attorneys" heading on plastic telephone book covers and on a specially printed city map showing the firm's location, and whether those items could be mailed by name to new residents of a community.

The Committee treated the covers and maps as advertising materials in the "public media" that could be permissible under DR 2-101 if they were not misleading. It concluded that the listing would be permitted only if recipients understood it to be advertising by the listed lawyers, not a disinterested recommendation by the company producing the materials. If the average recipient read the materials as a neutral recommendation of legal-service providers, or as a list of the only lawyers in the community, the materials would be misleading and a lawyer's payment to be included would violate DR 2-103(C) and DR 2-101(A). Where recipients might be uncertain, the lawyer would have to ensure the materials disclosed that the listing was paid advertising.

The Committee added that the materials are mass-produced rather than individualized communications, so they remain subject to the advertising rules even when mailed to named individuals, citing Opinion 420. The fact that the mailing targets only new residents does not change that the materials are instruments of mass communication subject to DR 2-101. The Committee answered 9-0 that participation is permissible if the listing is readily perceived as paid advertising meeting DR 2-101, including when mailed by name to new residents.

Currency note

This opinion was issued in 1985, 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 lawyer advertising and solicitation are in Part VII (Rules 7.01-7.05), with closest ABA analogs Model Rules 7.1, 7.2, and 7.3. 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 Treat this page as historical context, not current guidance.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: Could a Texas lawyer pay to be listed on a phone-book cover or city map?

A: Per the opinion, yes, but only if the listing was readily perceived by recipients as paid advertising by the lawyer rather than a disinterested recommendation by the producer. On that condition the Committee treated the covers and maps as permissible public-media advertising under DR 2-101.

Q: When would such a listing be misleading?

A: The Committee concluded the materials would be misleading, and payment would violate DR 2-103(C) and DR 2-101(A), if the average recipient read them as a disinterested recommendation of legal-service providers or as the only lawyers in the community. Where recipients might be uncertain, the lawyer had to ensure the materials disclosed that the listing was paid advertising.

Q: Did mailing the materials by name to new residents change the result?

A: No. The Committee held the materials are mass-produced instruments of mass communication subject to the advertising rules even when mailed to named individuals, and targeting only new residents did not alter that, citing Opinion 420.

Background and rules framework

The opinion interprets DR 2-103(C) of the former Texas Code of Professional Responsibility (barring a lawyer from compensating a person or organization to recommend the lawyer's employment, except for advertising in the public media within the limits of DR 2-101) and DR 2-101(A) (barring false or misleading communications about the lawyer or the lawyer's services). The closest current concepts are Texas Rules 7.01-7.05 and Model Rules 7.1 through 7.3 on advertising and solicitation. The analysis turns on whether recipients perceive the paid listing as advertising or as a disinterested recommendation.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising)
• MR 7.3 (solicitation of clients)
• DR 2-103(C), DR 2-101(A), DR 2-101, Texas Code of Professional Responsibility

Other opinions cited:

• Texas Professional Ethics Committee Opinion 420: mass-mailed materials remain subject to the advertising rules

See also

• TX Ethics Op. 426: Listing a Non-Lawyer Investigator on a Firm's Outdoor Sign
• TX Ethics Op. 462: Lawyer-Provided Waiting-Room Magazines
• TX Ethics Op. 446: Referrals and Fee Payment From a Financial-Planning Organization

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-427/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_427.pdf

Original opinion text

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

QUESTION PRESENTED

Under the Texas Code of Professional Responsibility, may a law firm pay a fee to a private company to obtain the inclusion on a plastic telephone book cover of the law firm's name, address and telephone number under the heading "Lawyers" or "Attorneys" and to obtain the inclusion on a specially printed city map of such information together with an indication on the map of the location of the law firm's office? Is it permissible for these items to be mailed in packages addressed by name to new residents of a community?

DISCUSSION

Disciplinary Rule ("DR") 2-103(C) provides that "[a] a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that a lawyer may advertise in the public media within the limits of DR 2-101, so long as the advertising communication does not take place in person or by telephone." DR 2- 101(A) provides that "[a] lawyer shall not make, on behalf of himself, his partner, associate, or any other lawyer, any false or misleading communication about the lawyer or the lawyer's services."

In the opinion of the Committee, printed plastic telephone book covers and maps that include the names, addresses and telephone numbers of lawyers who have paid to have their names included in such materials may be advertising materials involving "public media" and therefore may be permissible under the Texas Code of Professional Responsibility if the materials are not misleading. However, such materials would only be permitted advertising materials if the materials were understood by recipients to be advertisements by the persons listed rather than disinterested recommendations by the company providing the telephone book cover and map. If the average recipient of the book cover and map interpreted the materials as disinterested recommendations of providers of legal services or as information about the only providers of legal services in the community, the materials would be misleading and a lawyer's payment to place his name in such materials would be a violation of DR 2-103(C) and DR 2- 101(A).

Thus, to avoid a violation of the Texas Code of Professional Responsibility, a lawyer making payment for inclusion of his name in such materials should ensure that the materials are not misunderstood by recipients as a disinterested recommendation or as providing an exclusive list of lawyers in the community. If a recipient of the materials might otherwise be uncertain as to whether the materials were advertising by the companies and individuals listed, a lawyer participating in such an arrangement would be required to ensure that the materials adequately disclosed to recipients that the inclusion of the lawyer's name in the materials was advertising for which the lawyer had made payment.

Assuming that the advertising nature of the listing of the lawyer in the materials is sufficiently clear to recipients, the printed plastic telephone book covers and maps would in the opinion of the Committee be advertising materials involving "public media" that would be permitted subject to the requirements that a lawyer's advertising not be misleading or otherwise in violation of DR 2-101. The materials in question are mass-produced rather than individualized communications and hence the materials remain subject to the rules applicable to advertising even though such materials are mailed to named individual recipients. See Texas Professional Ethics Committee Opinion 420. Moreover, the fact that such mass-produced materials are mailed only to certain categories of persons -- in this case to new residents of a community -- does not alter the fact that the materials are instruments of mass communication subject to the advertising rules of DR 2-101.

Under the Texas Code of Professional Responsibility, participation by an attorney in a program to mail to new residents of a community printed in plastic telephone book covers and maps listing the names and locations of various providers of goods and services in the community would be subject to the requirements set forth in DR 2-101 that are generally applicable to advertising by lawyers provided that the listing of the attorney is readily perceived by recipients to be paid advertising by the lawyer rather than a disinterested recommendation of the attorney by the producer of the materials. If the telephone book cover and map are otherwise permissible as advertising that meets the requirements of DR 2-101, it is permissible for such materials to be mailed in packages addressed by name to new residents of a community. (9-0)

CONCLUSION

Under the Texas Code of Professional Responsibility, participation by an attorney in a program to mail to new residents of a community printed in plastic telephone book covers and maps listing the names and locations of various providers of goods and services in the community would be subject to the requirements set forth in DR 2-101 that are generally applicable to advertising by lawyers provided that the listing of the attorney is readily perceived by recipients to be paid advertising by the lawyer rather than a disinterested recommendation of the attorney by the producer of the materials. If the telephone book cover and map are otherwise permissible as advertising that meets the requirements of DR 2-101, it is permissible for such materials to be mailed in packages addressed by name to new residents of a community. (9-0)

Tex. Comm. On Professional Ethics, Op. 427 (1985)