Ethics Opinion 830

Ethics Opinion 830

6.11.2009

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion #830 (06/11/2009)
Topic:         Solicitation; advertising; public education for lay persons
Digest:        A lawyer may ethically contact lay organizations to inform them that he is available as a public speaker on legal topics, but must adhere to advertising and solicitation requirements under the Rules where the communication is made expressly to encourage participants to retain the lawyer or law firm.
Rules:          1.0(a), 7.1(a), 7.3(a), (q), (r)

QUESTION

1. May a lawyer contact an organization of laymen and inform them of his availability as a public speaker on legal topics?

OPINION

1. Before Bates v. State Bar of Arizona, 433 U.S. 350 (1977), New York’s Disciplinary Rules prohibited attorneys from engaging in any and all forms of solicitation. In N.Y. State 379 (1975), this Committee said that those pre-BatesDisciplinary Rules prohibited an attorney from initiating any contact to lay organizations. However, as explained in N.Y. State 508 (1979), the New York Code of Professional Responsibility was substantially revised in 1978 in the light of Bates.As amended, DR 2-103(A) prohibited only those solicitations that were “in violation of any statute or court rule.”   Also before Bates, certain Ethical Considerations in the Code permitted lawyers to participate only in educational programs conducted or sponsored “under proper auspices” (such as bar associations). After Bates, the Ethical Considerations were amended and those restrictions were eliminated.
2. Accordingly, N.Y. State 508 went on to determine that a law firm may organize and promote by mail legal seminars expressly designed for non-lawyers.   The Committee explained that “with advertising now permitted and the requirements of the Code relating to sponsorship now repealed, much of the rationale for the traditional prohibition on lawyers organizing and promoting legal seminars, or other programs of public education for lay persons, has been removed.”   The Committee noted, however, that it did not have the power to pass on whether such direct mailing constituted improper solicitation under New York Judiciary Law § 479, or whether § 479 was constitutional under Bates and its progeny.
3. Today, Rules 7.1 and 7.3 of the New York Rules of Professional Conduct, which took effect on April 1, 2009, control attorney advertisements and solicitations.   Specifically, Rule 7.1 generally regulates “advertising” by lawyers and Rule 7.3 regulates “solicitation” by lawyers (which is a special form of lawyer advertising).
4. An “advertisement” is defined by Rule 1.0(a) (in the Terminology rule) as follows:

             “Advertisement” means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.   It does not include communications to existing clients or other lawyers.

1.   “Solicitation” is defined in Rule 7.3(b) as follows:

             For purposes of this Rule [7.3], “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain.   It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

1.   Rule 7.3(a) of the Code prohibits a lawyer from engaging in “solicitation” by the following means (among others):

             (1)         by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client; or

             (2)         by any form of communication if:

             (i)          the communication or contact violates Rule 4.5, Rule 7.1(a), or paragraph (e) of this Rule.

1. Rule 7.1(a) prohibits any lawyer advertising that “(1) contains statements or claims that are false, deceptive or misleading; or (2) violates a Rule.”
2. Comment 9 to Rule 7.1 expressly recognizes that “lawyers should encourage and participate in educational and public-relations programs concerning the legal system, with particular reference to legal problems that frequently arise.” Comment 9 further notes that “[a] lawyer’s participation in an educational program is ordinarily not considered to be advertising because its primary purpose is to educate and inform rather than to attract clients.”   However, “a program might be considered to be advertising if, in addition to its educational component, participants or recipients are expressly encouraged to hire the lawyer or law firm.”   In that case, Rules 7.1 and 7.3 would regulate the communications.   (The Comments have been adopted only by the New York State Bar Association, not by the Courts.)
3. We also note that Rule 7.1(q) expressly permits a lawyer to “accept employment that results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services.”   Further, Rule 7.1(r) provides that “[w]ithout affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice.”
4. Applying these rules, definitions, and Comment 9 to this inquiry, a lawyer may contact a lay organization to alert the organization that the lawyer is available as a public speaker on legal topics.   However, if the communication is made expressly to encourage participants in the program to retain the lawyer or law firm, then the communication falls within the definitions of “advertisement” and “solicitation,” and such communications concerning the program must comply with Rules 7.1 and 7.3.
5. As previously noted, this Committee lacks jurisdiction to determine whether such communications are permitted under § 479 of the Judiciary Law, which prohibits solicitation by attorneys, and likewise lacks jurisdiction to determine whether § 479 remains constitutional in light of Bates and its progeny.

CONCLUSION

1. For the reasons stated, and subject to the qualifications set forth above, a lawyer may ethically contact lay organizations to inform them that he or she is available as a public speaker on legal topics.

(Inquiry No. 8-09)