Ezel / Ethics Opinions / NYSBA
NYSBA 2014

Can a lawyer advertise by sending commercial posts via email to members of internet message boards?

Short answer: Yes. The opinion concludes that a lawyer may advertise through commercial email posts to members of internet message boards if the ad is not false or misleading, complies with the Rules, and carries 'ATTORNEY ADVERTISING' in the subject line; because it is a non-interactive post to a group, it is not a targeted solicitation.
Currency note: this opinion is from 2014
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1016: Advertising by email to internet message boards

Short answer: A lawyer may advertise using commercial email posts to members of the internet message boards to which the lawyer belongs, provided the advertisement is not false, deceptive, or misleading, does not otherwise violate the Rules, and carries the "ATTORNEY ADVERTISING" label in the email subject line; because it is a non-interactive post to a group rather than a contact targeted at specific recipients, it is not a 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.

View original opinion

Plain-English summary

The inquiry concerned a lawyer who wanted to advertise by sending commercial posts via email to the members of various internet message boards to which the lawyer belonged, including parenting groups, neighborhood groups, and parents of children with special needs. The committee addressed both whether the communication is permissible advertising and whether it is a solicitation (¶¶ 6-16).

On advertising, the committee applied Rule 7.1, which bars false, deceptive, or misleading advertisements and those that violate a Rule, and permits including information such as education, degrees, practice areas, and language fluency. The proposed information was permissible under Rule 7.1(b). Rule 7.1(f) requires most lawyer advertising to be labeled "Attorney Advertising," and for email specifically the subject line must contain "ATTORNEY ADVERTISING." Drawing on N.Y. State 848 (2010), the committee explained the label dispels confusion when non-lawyers receive emails from lawyers and may not know whether the message is an advertisement. The advertisement must also comply with Rule 8.4(c) (no dishonesty or misrepresentation) and Rule 7.4 (the restricted "specialist" label) (¶¶ 6-11).

On solicitation, the committee applied Rule 7.3(b), which defines a solicitation as an advertisement directed to or targeted at a specific recipient or group whose primary purpose is retention and a significant motive is pecuniary gain. Comments [3] and [4] explain that an advertisement is targeted if made by in-person, telephone, or real-time or interactive computer-accessed communication, or if addressed for delivery to specific recipients; otherwise an advertisement in public media is presumed not to be targeted. A non-interactive commercial post to message-group members is not an interactive computer-accessed communication, and the presumption is not rebutted merely because the ad seeks clients in a specified practice area or because some recipients may need the services (¶¶ 12-16).

The committee concluded that, because the proposed advertisement is not directed to or targeted at a specific recipient or group, it is not a solicitation under Rule 7.3 (¶¶ 16-17).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion holds that a lawyer may advertise through commercial email posts to internet message-board members, provided the advertisement is truthful, complies with the Rules, and carries "ATTORNEY ADVERTISING" in the subject line. Per the opinion, such a non-interactive group post is not a solicitation under Rule 7.3, so it is not subject to the solicitation rules; the committee noted that the targeting presumption is not rebutted merely because some recipients might need the advertised services. The advertisement must still satisfy Rule 8.4(c) and the Rule 7.4 limit on the "specialist" label.

Common questions

Q: Can a lawyer email advertising to internet message-board members?

A: Yes, if the advertisement is not false, deceptive, or misleading, complies with the Rules, and carries the "ATTORNEY ADVERTISING" label in the subject line (¶ 17).

Q: Where does the "Attorney Advertising" label go in an email?

A: In the subject line. Rule 7.1(f) requires that for email advertising the subject line contain the notation "ATTORNEY ADVERTISING" (¶ 9).

Q: Is a group email post a solicitation?

A: No. The committee concluded a non-interactive commercial post to message-group members is not directed to or targeted at specific recipients, so it is not a solicitation under Rule 7.3 (¶¶ 14-16).

Q: Does it become a solicitation because some recipients may need the services?

A: No. The committee said the targeting presumption is not rebutted simply because the ad seeks clients in a specified area or because some recipients might need the services (¶ 15).

Background and rules framework

The opinion interprets New York Rule 7.1 (lawyer advertising, including the 7.1(f) labeling requirement), Rule 7.3 (solicitation), Rule 7.4 (the "specialist" label), and Rule 8.4(c) (dishonesty or misrepresentation), corresponding to ABA Model Rules 7.1, 7.3, 7.4, and 8.4. The analysis turns on the definition of "solicitation" and whether a group email post is targeted at specific recipients.

Citations and references

Rules of Professional Conduct:

  • MR 7.1 / NY RPC 7.1, 7.1(f) (advertising; the "Attorney Advertising" label)
  • MR 7.3 / NY RPC 7.3(b) (definition of solicitation; Cmts. [1], [3], [4])
  • MR 7.4 / NY RPC 7.4 (the "specialist" label); MR 8.4 / NY RPC 8.4(c) (dishonesty)

Other opinions cited:

  • N.Y. State 848 (2010): when an electronic newsletter must carry the "Attorney Advertising" label
  • N.Y. State 841 (2010): advertising must comply with Rule 8.4(c) and Rule 7.4

See also

Source