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