Can a law firm sell advertising space to other professionals in its educational newsletter, and is the whole newsletter treated as lawyer advertising?
NY State Bar Ethics Opinion 1001: Selling Advertising in a Law Firm Newsletter
Short answer: A law firm that distributes an educational newsletter may sell advertising space in it to third parties, including other law firms, as long as the firm charges rates that do not suggest a referral or fee-splitting arrangement; and because the newsletter as a whole is "advertising" under Rule 1.0(a), the requirements of Rule 7.1 apply to the entire publication.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A New York law firm published a free monthly newsletter combining articles on legal subjects in its practice areas with advertisements for the firm; many articles ended with an invitation to call the firm, and the back cover was entirely a firm advertisement. The firm asked whether it could sell advertising space in the newsletter to other professionals, including law firms, medical professionals, and others, charging a straight fee with no referral, fee-sharing, or similar arrangement.
The opinion concludes the firm may sell that space, subject to two points. First, the committee relied on the firm's representation that no improper factors influence the value received for the advertising; its concern is not the price but any explicit or implicit understanding suggestive of a fee-splitting or referral arrangement that would violate other rules, including Rule 1.5(g) and Rule 7.2(a). Selling or even giving away ad space to other professionals is permissible so long as no referral or other fee attends the transaction, consistent with the committee's prior opinions allowing various cross-selling techniques that comply with Rule 7.1.
Second, although not the firm's question, the opinion concludes the entire newsletter constitutes "advertising" under Rule 1.0(a), because whether a brochure is lawyer advertising depends on the entirety of the publication, not only the parts promoting the firm. That means Rule 7.1 applies throughout: the words "Attorney Advertising" should appear on the first page in clearly legible form (Rule 7.1(f), (l)); statements characterizing the quality of services or creating expectations about results must carry the disclaimer "Prior results do not guarantee a similar outcome" (Rule 7.1(d), (e)); the firm must retain a copy for at least three years (Rule 7.1(k)); and any fee arrangement offered must be held open until the next monthly issue (Rule 7.1(m)).
In practice
Under this opinion, a firm may treat its newsletter as a venue to sell advertising to other professionals, as long as the arrangement is an arm's-length sale of space and not a disguised referral or fee-split. The opinion holds that, under the New York advertising rules as they stood at the time, the test for whether a publication is lawyer advertising looks at the whole publication; here, because most pages promoted the firm and articles invited readers to call, the newsletter was advertising in its entirety and Rule 7.1's labeling, disclaimer, retention, and held-open requirements applied to it.
Common questions
Q: Can a law firm sell ad space in its newsletter to other lawyers or businesses?
A: Yes. The opinion concludes a firm may sell or give advertising space to other professionals, including law firms, provided no referral or other fee accompanies the transaction and the rates do not imply a fee-splitting or referral arrangement.
Q: Is an educational legal newsletter considered "advertising"?
A: It can be, in its entirety. The opinion concludes that whether a publication is lawyer advertising turns on the whole publication, and this firm's newsletter, which heavily promoted the firm, was advertising subject to Rule 7.1.
Q: What does treating the whole newsletter as advertising require?
A: Among other things, an "Attorney Advertising" label on the first page (Rule 7.1(f), (l)), the "Prior results do not guarantee a similar outcome" disclaimer where the content characterizes quality or results (Rule 7.1(d), (e)), retention of a copy for three years (Rule 7.1(k)), and holding any advertised fee arrangement open until the next issue (Rule 7.1(m)).
Background and rules framework
The opinion applies New York Rule 1.0(a) (definition of "advertisement"; cf. Model Rule 1.0), Rule 7.1 (Model Rule 7.1 on communications about a lawyer's services), and the fee-splitting and referral provisions of Rule 1.5(g) and Rule 7.2(a) (cf. Model Rules 1.5(e) and 7.2). It draws on prior New York opinions approving cross-selling and shared-advertising arrangements that comply with Rule 7.1 and avoid prohibited referral or fee-splitting agreements.
Citations and references
Rules of Professional Conduct:
- New York RPC 1.0(a) (definition of advertisement; cf. Model Rule 1.0)
- New York RPC 7.1(d), (e), (f), (k), (l), (m) (advertising labeling, disclaimers, retention, held-open; cf. Model Rule 7.1)
- New York RPC 1.5(g) (division of fees; cf. Model Rule 1.5(e))
- New York RPC 7.2(a) (payment for recommending services; cf. Model Rule 7.2)
Other opinions cited:
- N.Y. State 981: placing a non-legal service provider's advertisement in the lawyer's office
- N.Y. State 947 (2012); N.Y. State 937 (2012); N.Y. State 915 (2012): permissible cross-selling techniques
See also
- NY State Bar Op. 1129: Law Firm Newsletters as Advertising
- NY State Bar Op. 1095: Updating Advertising After a Firm Name Change
- NY State Bar Op. 1009: Press Releases and Tweets in Shareholder Litigation
Source
- Landing page: https://nysba.org/ethics-opinion-1001/