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 

Taxat ion 

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 classification 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 employment 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. 

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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 employment 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 competence 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, 433 U.S. at 384; 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 ~dvisory Committee 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. 
We Concur: 

CMef Justice 

i' f'