Are a law firm's press releases and tweets about shareholder lawsuits subject to New York's attorney advertising and solicitation rules?
NY State Bar Ethics Opinion 1009: Press Releases and Tweets in Shareholder Litigation
Short answer: A firm's press releases and tweets aimed at potential clients in shareholder suits are both advertisements and solicitations; press releases must be kept three years, tweets must carry the "Attorney Advertising" label and be kept one year, and solicitations directed to New York recipients must be filed, but the tweets are not barred by the rule against interactive solicitation.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's 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 lawyer at an out-of-state firm focused on shareholder litigation describes the firm distributing press releases about new investigations or lawsuits through wire services like Business Wire and PR Newswire, and sending tweets to alert recipients to those releases. Potential clients sometimes contact the firm after seeing them. The questions are whether the releases and tweets are advertisements under Rule 7.1 and solicitations under Rule 7.3, and what retention, labeling, and filing rules follow.
The opinion concludes the press releases and tweets are advertisements, because their primary purpose is to obtain clients (Rule 1.0(a)). As advertisements they are subject to pre-approval and retention under Rule 7.1(k). The committee distinguishes the two formats on retention: because the press releases are pushed through wire services into all kinds of mass media, including print, they are not "computer-accessed communications" and carry the standard three-year retention, while the tweets are computer-accessed communications and require only one-year retention. On labeling, the opinion holds the tweets must carry the "Attorney Advertising" label under Rule 7.1(f), because they do not fall within any exempt medium and are not limited to friends, relatives, or existing or former clients.
The opinion then concludes the press releases and tweets are also solicitations under Rule 7.3. Applying the four-element definition, the committee finds the only contested element is whether they are directed at a specific group. Per the opinion, advertising aimed merely at an area of law like shareholder litigation is not a solicitation, but advertising directed at the specific shareholders of a particular company on particular dates is, and the sample releases reference specific incidents and groups of shareholders. So they are solicitations, and Rule 7.3(c)'s filing requirement applies to any directed to New York recipients, which turns on whether the lawyer knows or has reason to know New York residents are in the target audience.
Finally, the opinion addresses the ban on interactive solicitation. Rule 7.3(a)(1) bars solicitation by real-time or interactive computer-accessed communication to non-clients. The committee concludes the broadly distributed tweets described here are not real-time or interactive, because they do not involve live responses and are more like ordinary email or web postings than instant messaging or chat rooms, so Rule 7.3 does not prohibit them.
In practice
Under this opinion, and under the New York rules as they stood at the time, a firm publicizing shareholder investigations to attract clients is doing both advertising and solicitation. Per the opinion, the practical consequences are: keep press releases three years and tweets one year; label the tweets "Attorney Advertising"; and, because the communications are solicitations, file those directed to New York recipients under Rule 7.3(c), with the lawyer's knowledge of New York residents in the audience controlling whether the filing duty attaches. The opinion holds the tweets are not prohibited interactive solicitation, as currently used, because they are not real-time or live-response communications.
Common questions
Q: Are law firm press releases and tweets seeking clients considered advertising in New York?
A: Yes, under this opinion. The committee concludes (paragraphs 6 to 7) that because their primary purpose is to secure clients, both are advertisements under Rule 1.0(a) and Rule 7.1.
Q: How long must a firm keep press releases versus tweets?
A: The opinion holds (paragraphs 9 to 10) press releases must be retained three years, because they flow through wire services into mass media, while tweets are computer-accessed communications requiring only one-year retention.
Q: Do the tweets have to be labeled "Attorney Advertising"?
A: Yes. The opinion concludes (paragraphs 11 to 12) the tweets do not fall within any medium exempt from Rule 7.1(f) and are not limited to friends, relatives, or existing or former clients, so they need the label.
Q: Are the tweets prohibited as interactive solicitation?
A: No. The opinion finds (paragraphs 21 to 22) the broadly distributed tweets are not real-time or interactive communication, so Rule 7.3(a)(1) does not bar them.
Q: When must these solicitations be filed with the disciplinary committee?
A: The opinion explains (paragraph 19) that Rule 7.3(c)'s filing requirement applies to solicitations directed to New York recipients, which turns on whether the lawyer knows, or has reason to know from the company's size or nature, that New York residents are in the target audience.
Background and rules framework
The opinion interprets Rule 7.1 (Model Rule 7.1), governing advertisements, including the labeling requirement in Rule 7.1(f) and the pre-approval and retention requirements in Rule 7.1(k); the definitions in Rule 1.0(a) ("advertisement") and Rule 1.0(c) ("computer-accessed communication"); and Rule 7.3 (Model Rule 7.3), defining and regulating solicitations, including the filing requirement in Rule 7.3(c) and the ban on real-time or interactive solicitation in Rule 7.3(a)(1). Rule 8.5(b) (Model Rule 8.5) frames which jurisdiction's rules apply.
The committee organizes the analysis around the four-element solicitation definition and the Rule 7.3 comments distinguishing advertising aimed at an area of law from advertising aimed at people harmed by a specific incident or at an identifiable group such as the shareholders of a particular company.
Citations and references
Rules of Professional Conduct:
- New York RPC 7.1(f), (k) (advertising; labeling, pre-approval, retention) / Model Rule 7.1
- New York RPC 7.3 (solicitation; filing; interactive contact) / Model Rule 7.3
- New York RPC 1.0(a), (c) (definitions of advertisement and computer-accessed communication)
- New York RPC 8.5(b) (choice of law) / Model Rule 8.5
Other opinions cited:
- N.Y. State 873 (2011): a communication whose primary purpose is to obtain clients is an advertisement
See also
- NY State Bar Op. 1010: Advertising Second Opinions to Represented Parties
- NY State Bar Op. 1039: Blog Opt-In Box as Advertising or Solicitation
- NY State Bar Op. 1049: Responding to and Posting Online Requests for a Lawyer
- NY State Bar Op. 1016: Advertising by Email to Internet Message Boards
Source
- Landing page: https://nysba.org/ethics-opinion-1009/