Can a New York law firm advertise that it offers second opinions to people who already have a lawyer?
NY State Bar Ethics Opinion 1010: Advertising Second Opinions to Represented Parties
Short answer: A law firm may advertise that it is available to provide second opinions on pending cases in which people are already represented by other counsel.
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 firm that advertises through public media, including radio, wants to tell the public it is available to give second opinions on pending cases where people already have a lawyer, using language like "If you are unhappy with your current attorney, you can call [the firm] to discuss your matter." The question is whether that advertising is proper.
The opinion first addresses the no-contact rule, Rule 4.2(a), which bars a lawyer who is representing a client from communicating about the matter with a person the lawyer knows is represented by other counsel. The committee concludes Rule 4.2(a) does not apply, because the rule reaches only communications made while representing a client, and here the firm is seeking new clients in matters it is not yet handling.
The opinion holds the advertising is still subject to Rule 7.1's general advertising restrictions: no false, deceptive, or misleading statements, plus labeling, identification, pre-approval, and retention requirements. On the facts described, the committee saw nothing false or misleading in the sample language, though it notes a full conclusion would require reviewing the entire actual advertisement.
Finally, the opinion analyzes Rule 7.3, which adds restrictions for advertisements that are also solicitations. Per the opinion, a public-media advertisement becomes a solicitation only if it refers to a specific person or group whose legal needs arise from a specific incident the ad explicitly references. Because the proposed second-opinion advertising does not appear to do that, the committee concludes it would not be a solicitation and Rule 7.3 would not apply.
In practice
Under this opinion, and under the New York rules as they stood at the time, a firm may run general advertising offering second opinions to people who already have counsel. Per the opinion, the no-contact rule is not triggered because the advertising firm is not representing a client in the matter, so the analysis turns on the ordinary advertising rules in Rule 7.1, and on whether the particular advertisement crosses into solicitation under Rule 7.3 by referencing a specific incident and the people harmed by it. The opinion adds, in a footnote, that an advertisement may not mislead as to the cost of seeking a second opinion or switching attorneys, and that if a represented person contacts the firm about taking over the matter, Rule 1.5(b) requires communicating the scope and fee basis.
Common questions
Q: Can a firm advertise second opinions to people who already have a lawyer?
A: Yes, under this opinion. The committee concludes (conclusion paragraph) a firm may advertise its availability to provide second opinions on pending matters where individuals are already represented.
Q: Does the no-contact rule (Rule 4.2) prohibit this kind of advertising?
A: No. The opinion explains (paragraph 4) that Rule 4.2(a) applies only to communications made while representing a client, and a firm seeking new clients in matters it is not handling is not within the rule.
Q: Could a second-opinion advertisement ever be a solicitation under Rule 7.3?
A: Yes, if it refers to a specific group of people whose legal needs arise from a specific incident the advertisement explicitly references (paragraphs 8 to 9). General second-opinion advertising that does not do so is not a solicitation.
Background and rules framework
The opinion interprets Rule 4.2 (Model Rule 4.2), the no-contact rule; Rule 7.1 (Model Rule 7.1), governing advertisements and barring false, deceptive, or misleading communications and setting labeling, pre-approval, and retention requirements; and Rule 7.3 (Model Rule 7.3), which adds requirements for advertisements that are solicitations, defined as advertising initiated by the lawyer and directed at specific recipients for retention and pecuniary gain.
The committee frames the question around the scope of the no-contact rule and the line between general advertising and solicitation, drawing on Rule 7.3's comments distinguishing advertising aimed at an area of law from advertising aimed at people harmed by a specific incident.
Citations and references
Rules of Professional Conduct:
- New York RPC 4.2(a) (communication with represented persons) / Model Rule 4.2
- New York RPC 7.1 (advertising) / Model Rule 7.1
- New York RPC 7.3 (solicitation) / Model Rule 7.3
Other opinions cited:
- Florida Opinion 02-5 (2003): no-contact rule does not bar advertising to represented persons seeking new counsel
- N.Y. State 1009 (2014): elements of the solicitation definition
See also
- NY State Bar Op. 1009: Press Releases and Tweets in Shareholder Litigation
- NY State Bar Op. 1014: Contacting a Prospective Client on a Client's Recommendation
- NY State Bar Op. 1039: Blog Opt-In Box as Advertising or Solicitation
- NY State Bar Op. 1016: Advertising by Email to Internet Message Boards
Source
- Landing page: https://nysba.org/ethics-opinion-1010/