NO. 14968
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE MOUNTAIN BELL DIRECTORY ADVERTISING
ORIGINAL PROCEEDING:
Appearances:
For Mountain Bell:
George T. Bennett (argued), Helena, Montana
Keith Galitz (argued), Denver, Colorado
Others:
Paul T. Keller (argued), Helena, Montana,
for the Ethics Committee of the State Bar of
Montana
Perry J. Moore (argued), Bozeman, Montana,
pro se
L. Morris Ormseth, Great Falls, Montana,
for the State Bar of Montana
William P. Fitzgerald, Billings, Montana,
pro se
Submitted: September 20, 1979
Decided: 2 1975
Filed: .Qc-' (-. ,?.gT:
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Mountain States Telephone and Telegraph Company, a
Colorado corporation, operates in seven western states
and El Paso, Texas. In Montana, as elsewhere, it is a
public utility company operating an extensive telephone
service under the trade name of Mountain Bell.
It publishes several telephone directories in Montana
which include the well-advertised "yellow pages". In the
lawyers' section of the yellow pages, it has in the past
listed gratis the name, address and telephone numbers of
lawyers and law firms if they are also telephone subscribers
listed in the white pages of the directories.
In the next publication of the directories for Billings,
Bozeman, Kalispell, Great Falls, Helena, Butte and Missoula,
Mountain Bell proposes to publish a Lawyers Guide following
the alphabetical listing of lawyers in the yellow pages.
Thirty-three categories of practice under the Lawyers Guide
and cross-references thereto are proposed as follows:
Accidents - Personal Injury/Property Damage
Administrative & Governmental
Admiralty
Agricultural - Ranch/Farm/Livestock
Antitrust
Aviation
Banking
Bankruptcy
Collections
Consumer
Corporation, Partnership & Business
Criminal
Divorce-Family
Environmental
Estate Planning, Wills & Trusts
General Practice
Immigration & Naturalization
Insurance
International
Juvenile
Labor
Landlord & Tenant
Mining
Oil & Gas
Patent
Probate & Estate Administration
Real Estate
Securities
Taxation
Trademark & Copyright
Trials & Appeals
Water
Workmen's Compensation
CROSS-REFERENCE LIST - LAWYERS
Children
See Juvenile
Commercial Law and Contracts
See Corporation, etc.
Debt Collection
See Collections
Wills & Trusts
See Estate Planning, Wills & Trusts
Social Security
See Administrative & Governmental
A caveat would be printed on each page of the
proposed Lawyers Guide as follows:
"The fields of law named in the listing
subheadings indicate that the lawyer or
law firm will accept employment for matters
coming within the fields of law listed in the
subheadings, but do not indicate that the
lawyer or law firm limits or primarily limits
his, her or its practice to or specializes
in the fields of law used in the subheadings,
unless otherwise indicated."
This Supreme Court by order of May 1, 1973 (see,
160 Mont. pp. xxiii-lv, incl.), adopted with minor amendments
the Canons of Professional Ethics proposed by the American
Bar Association to govern the activities of lawyers in
Montana. DR 2-102(A)(5) of those Canons provides:
"DR 2-102 Professional Notices, Letterheads,
Offices ---
and Law Lists
"(A) A lawyer or law firm shall not use
professional cards, professional announcement
cards, office signs, letterheads, telephone
directory listings, law lists, legal directory
listings, or similar professional notices or
devices, except that the following may be used
if they are in dignified form:
"(5) A listing of the office of a lawyer
or law firm in the alphabetical and 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 and
in the city directory of the city in which his
or the firm's office is located, but the listings
may give only the name of the lawyer or law firm,
the fact he is a lawyer, addresses, and telephone
numbers. A law firm may have a listing in the
firm name separate from that of its members and
associates. The listing in the classified
section shall not be under a heading or classi-
fication other than 'Attorneys' or 'Lawyers,'
except that additional headings or classifications
descriptive of the type of practice referred to in
DR 2-105 are permitted."
Canon DR 2-105, referred to in the above Canon, as
now promulgated, provides that a lawyer shall not hold
himself out publicly as a specialist, or as limiting his
practice, except that lawyers engaged in patent, trademark
or admiralty practice may use such terms on his letterhead
and office sign; a lawyer's name may be listed in lawyer
referral service offices according to fields of law in
which he will accept referrals; and a lawyer may distribute
to other lawyers or publish in legal periodicals of his
availability in a particular branch of practice, not
including any representation of special competence or
experience.
From the foregoing, it is obvious that the proposal
of Mountain Bell to categorize branches of practice in its
Lawyers Guide and to accept listings of lawyers under any
or all such categories in its yellow pages runs counter to
the Canons governing lawyers in Montana as they are now in
effect. This Court, however, has been considering on its
own and accepting suggestions from the bar for amendments
to the Canons that will conform to the spirit and purpose of
the decision of the United States Supreme Court in Bates
v. State Bar of Arizona (1977), 433 U.S. 350, 97 S.Ct. 2691,
53 L.Ed.2d 810.
We have not reached a final conclusion as to the
precise form of the amendments to be adopted. The subject
is quite complex. However, in advance of the adoption of
such amendments, it is propitious that this Court indicate
its opinion with respect to Mountain Bell's proposal for the
governance of the bar. To that end we invited Mountain Bell
and the organized bar, particularly its Ethics Committee,
to attend a hearing before us so that the proposal could
be identified and the response of the bar determined. We
have had the benefit of such hearing and the briefs and
documents supplied us by the participants.
Mountain Bell submits in support of its proposal that
(1) the Bates case requires it to accept advertising for
lawyers; (2) that a list of lawyers who would accept employ-
ment under the proposed categories would be a public service
and convenience to consumers, and save time and trouble for
lawyers who decline certain categories of law business; (3)
that it would charge for each individual listing under each
category a sum depending upon the circulation size of the
directory (e.g. $1.45 per month for each category listing
in Great Falls, or $3.65 per month for each bold face listing;
$1.25 per month in Helena, or $3.00 per month for each
bold face); (4) that it would not publish a Lawyers Guide in
smaller communities, where the lists of lawyers would be
short, the lawyers are general practitioners, and usually
well-known in their communities; (5) that such guides are
now published in other states and will be published in
Colarado this year; (6) that any prohibitions upon telephone
directory listings is illegal under Princeton Community
Phone Book, Inc. v. Frank L. Bate, et al., individually
and as members of the Advisory Committee on Professional
Ethics of the New Jersey Supreme Court (U.S.C.A.3d 1978),
582 F. 2d 706; and, (7) that lawyers may advertise and are
now advertising in other media, notably newspapers.
The State Bar of Montana has responded that (1) its
Board of Trustees are opposed 12-2 to such yellow page
listings; (2) that the proposed advertising is inherently
misleading; (3) that a lawyer so listing his specialties
should accept professional responsibility for claiming
specialized expertise; (4) there is no need for such specialty
advertising but lawyers will be forced to use them by
reason of competition.
The Ethics Committee of the State Bar of Montana is
opposed because (1) lawyers would feel the need to utilize
as many as twenty such listings, with the accompanying
expense; (2) the majority of state lawyers oppose the
proposal; (3) the allowance of block ads or display ads in
the yellow pages would satisfy Bates; and, (4) such listings
would be misleading to the public in spite of the caveat,
because the public would assume that the lawyers listed
under the categories were specialists in the respective
categories; ( 5 ) the proposal would work against lawyers who
feel the dignity of the profession requires that they
publish only their names, firms, and office addresses and
telephone numbers in the yellow pages.
William J. Fitzgerald of Billings filed a written
memorandum to oppose Mountain Bell's proposal. He and
his firm have utilized block advertisements in the yellow
pages since the Bates case. He reported (1) his conversations
with lawyers in Billings, Montana's largest city, and the
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smaller towns surrounding it, and that such lawyers
oppose the Mountain Bell proposal; (2) that the proposal
is incompatible with the profession of law as it is
practiced in eastern Montana, where most attorneys have
a general practice; ( 3 ) that an attorney would have to
list himself or herself under an extended list of headings,
the expense of which would be advantageous to large firms
and disadvantageous to small or one-person firms; (4) that
Montana has no standards adopted as to what should be
required for an attorney to hold himself out to the public
that he is a specialist; and, ( 5 ) that the consuming public
would regard lawyer listings as they do physician listings,
implying the legal profession is similar to the medical
profession which has well defined areas of specialization,
irrespective of the caveat.
Perry J. Moore of Bozeman and Harlowton appeared in
person and filed a memorandum opposing Mountain Bell. He
contends that the thrust of the Bates decision is that
lawyers are entitled to advertise as long as the advertisement
is not false, fraudulent or misleading. He states that
nearly all of the lawyers in his area (including Billings)
are general practitioners; that each general practitioner
would feel forced to list under many of the categories; that
the number of listings under each category would confuse,
rather than aid, a prospective client searching for a lawyer
under a category; that the proposal will not aid the
consumer to make an informed decision; and that the
implication of specialized ability through such categories
would be misleading to the consuming public.
It is our opinion that lawyers who listed themselves
in the yellow pages under the branches of practice proposed
by Mountain Bell would indeed be holding themselves out to
the public as having special expertise in such branches;
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that the public would be misled thereby into believing
that standards of specialization exist in the legal
profession in Montana as they do in other professions;
that the proposed caveat would not be advantageous to the
consumer and advantageous only to the lawyers and Mountain
Bell; and that there is little or no need in Montana presently
for the kind of category listing proposed.
First and foremost, it is necessary to understand
the implications of the Bates decision. In Bates, the
United States Supreme Court is saying that advertising by
lawyers is protected commercial speech under the First
Amendment; that lawyer advertising is necessary to aid the
consuming public to "facilitate the process of intelligent
selection of lawyers". 433 U.S. at p. 377; 97 S.Ct. at p. 2705-
But in no way should Bates be construed as requiring under
the First Amendment that false, fraudulent and misleading
advertising is protected, or as suspending such laws against
deceptive practices in business as are embodied in section
45-6-317(b), MCA. Again, see Bates, 433 U.S. at 383, 97
Sect. 2t 2708.
To be sure, we are quick to say, there are many lawyers
in Montana who have achieved a high level of competence
in certain branches and perhaps several branches, of the
practice of law. Nothing we say here would prevent any such
lawyer or law firm from publishing in block or classified
ads in newspapers, yellow pages, or other printed media,
suitable advertisements advising the public of the areas of
their practice, fee schedules, and other truthful information
useful to prospective clients. But under the proposal of
Mountain Bell, the highly competent lawyers in any branch of
legal practice would be lumped without distinction with
lawyers of perhaps lesser competence in the same category.
- 8-
No distinguishing factors in the proposed listings would
be of any aid to shopping clients in making an intelligent
selection. Instead the impression is created that each
of the lawyers is of equal ability in the category noted
and that each is a specialist in that field. Thus, the
proposal is misleading and frustrates rather than implements
the spirit and purpose of Bates.
On this point, Mountain Bell contends that it is
not asserting specialization; that it is merely stating
in what areas lawyers will accept employment, and that its
caveat advises the would-be client that specialization is
not indicated. However, the public statements of Mountain
Bell and its solicitation of listing from lawyers belie
this contention. In announcing the proposed Lawyers Guide,
the Mountain Bell spokesman said, as reported in the Great
Falls Tribune on September 16, 1979:
"Russ Cravens, spokesman for Mountain Bell's
state headquarters here, said Thursday the phone
company is proposing to list lawyers in the
Yellow Pages according to specialty of practice.
"This listing would be in addition to the regular
alphabetical listing now found in the Yellow
Pages.
"Cravens likened the new listings to those now
offered to physicians, whose speciality is
included under their names in the Yellow Pages.
"He said that while many lawyers handle a wide
variety of cases, some specialize in such things
.as bankruptcies, divorces, antitrust actions,
estates, wills and trust, corporate law, taxes,
etc.
"'The idea is to help improve the usefulness
of the Yellow Pages and to help people handle
the kind of problem they may have,' Cravens
said. "
Moreover, in soliciting listings from lawyers in the
upcoming Billings telephone directory, by letter, Mountain
Bell urged lawyers to be listed under their "specialties."
The public statements and communications of Mountain Bell
indicate the reality of their proposal: the public would
assume some sort of specialization is authored, approved and
sanctioned among Montana lawyers.
Mountain Bell also asserts that a client is protected
by malpractice procedures if a lawyer should accept employ-
ment under a listing for which he is incompetent or inexperienced.
We prefer the ounce of prevention to the pound of cure.
Since we find that it is implied in Mountain Bell's
proposal that the listings assure specialized expertise
in each field, we are led inexorably to the conclusion that
such implication is misleading as a general matter. In
Montana certainly, we have not adopted standards of com-
petence relating to specialized fields of law practice. In
that regard we are not to be compared to the profession
of medicine, which, by means of board certification, and
staff rules in hospitals, can hold out to consuners areas
of competence for physicians and surgeons. While many lawyers
under each category would most probably be competent, some
might not be. Nothing would inform the unsuspecting seeker
of legal aid which is which. The possibility of harm would
be ameliorated if Mountain Bell would take it upon itself,
in the manner of Good Housekeeping, to assure the quality of
its listings. Its solicitation for listings indicates quite
the opposite: it will accept any lawyer's name under any
category. It relies on the caveat to avoid responsibility
for any lack of ability of the lawyer. There is no assurance
of the truthful advertisement which the First Amendment
protects under Bates, 4 3 3 U.S. at 3 8 4 ; 97 S.Ct. at 2709.
Thus the caveat is a protection to Mountain Bell and
to the lawyer who, having accepted employment under a
particular listing, can point to the language of the caveat
as excluding any representation of expertise in the field.
It is not advantageous to the client, who in truth, is
never promised a rose garden, though specialized fields
are listed in the yellow pages.
The last element on which we base our decision is
that there is little or no need for such listings in
Montana. We are a rural state with a total population
of approximately 800,000 persons spread out over the
fourth largest state in the union. Our largest city has
approximately 150 lawyers now listed in the yellow pages.
By and large our bar in the great majority is composed
of general practitioners. Specialization has been
developing, but mostly in the fields of taxation, referring
especially to income and estate taxes. While some lawyers
acquire a reputation for special ability in one or more
fields of practice, they do not necessarily limit their
practice to such fields. In this situation, a lawyer
practicing in any of our cities and towns would feel compelled
to list under a dozen or more of the categories proposed.
It would be a matter of keeping up with the competition, and
to reflect the true nature of his or her practice spreading
across many fields.
Additionally, the telephone directories for the larger
cities also contain the directories for smaller towns around
the larger cities. For example the Billings telephone
directory also contains the telephone directories for twenty
of the smaller towns surrounding it. A lawyer practicing in
a smaller town listed in such a directory, along with lawyers
from the larger city, would find himself unlisted as to
specialties in the yellow pages while his colleagues in the
larger city would have such specialty listings. It would be
a competitive disadvantage for example, for a lawyer in Harlowton,
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Montana with no listed specialty, to appear in the same
directory with the Billings lawyers, who with no greater
assurance of competence could nevertheless hold out to the
consumers in Harlowton, only 90 miles away, that they had
special abilities available in Billings. There is no need
for such yellow page listing anomalies since other advertising
is permitted.
We have examined the case of Princeton Community
Phone Book, Inc. v. Frank L. Bate, et aL, individually
Professional
and as members of the ~dvisoryCommittee on/Ethics of
the New Jersey Supreme Court (U.S.C.A.3d 1978), 582 F.2d
706. It is impressive, but we are inclined to liken the
situation here to Ohralik v. Ohio State Bar Association
(1978), 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444,
where it is held that a state may constitutionally discipline
a lawyer for soliciting clients, for pecuniary gain,
under circumstances likely to pose dangers to the public
that the state has a right to prevent. 436 U.S. at 449, 98
S.Ct. at 1915. There is a significant potential in the
Mountain Bell proposal for misrepresentation and overreaching
by lawyers and resulting harm to the public. We would hope
that Mountain Bell, in a spirit of cooperation, would withdraw
its proposal in Montana.
Nothing in this opinion affects the listings already
permitted by the existing canons, and again, nothing
herein stated prevents any lawyer or law firm from
individually advertising by truthful and informative
means in the yellow pages or other printed media. We
expect to handlethe matter of advertising in electronic
media when we finally amend our Canons of Ethics.
W e Concur:
CMef J u s t i c e
i' f'