Can a New York lawyer run a blog with an opt-in box offering a free report in exchange for contact information used to market the lawyer's services later?

Plain-English summary

A lawyer admitted in New York and California ran a blog providing legal and publishing information to authors. The blog, marked as "attorney advertisement," carried an opt-in box offering a free written report about copyrights in exchange for a reader's name and email address; the lawyer planned to build a subscriber list, survey subscribers about their needs, and later advertise legal products to them (¶ 1, ¶ 2). The lawyer asked whether running the opt-in box is permissible and whether it is a "solicitation" under Rule 7.3(b) (¶ 3, ¶ 4).

The committee first set aside questions of law outside its jurisdiction, noting that using email gathered for one purpose for another may implicate the federal CAN-SPAM Act and FTC rules (¶ 5). It then walked through the advertising definition in Rule 1.0(a) (a communication whose primary purpose is the retention of the lawyer) and the resulting Rule 7.1 requirements when a communication is an advertisement, including the bar on false or misleading claims, the "Attorney Advertising" label, identifying information, and retention (¶ 6, ¶ 7). The committee observed that not all lawyer blogs are advertisements: educational topical blogs generally are not, while blogs primarily about the lawyer or firm generally are, and whether a given blog is an advertisement is not always clear (¶ 8, ¶ 9). It added that a lawyer's precautionary use of the "Attorney Advertising" label is not dispositive (¶ 9). Citing N.Y. State 873, the committee found no ethical bar to offering a free report in exchange for names and email addresses (¶ 10).

On solicitation, the committee explained that Rule 7.3(b) 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 pecuniary gain. The blog and opt-in box, standing alone, are not transmitted by real-time or interactive computer-accessed communication and are not delivered to specific recipients, and the blog does not refer to a specific person or group whose legal needs arise from a specific incident, so even if the blog were an advertisement, it is not a solicitation (¶¶ 11-13, citing N.Y. State 1016). But if the lawyer later uses the collected email addresses to send the lawyer's advertisements, those communications would be advertisements and may also fall within the definition of solicitation, subject to Rule 7.3 (¶ 14, ¶ 15).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion permits the blog and opt-in box arrangement. Per the opinion, the analysis turns on Rule 1.0(a)'s definition of "advertisement" and Rule 7.3(b)'s definition of "solicitation." The committee concludes the blog and opt-in box are not a solicitation because they are not delivered to or targeted at specific recipients and do not reference a specific incident. The opinion treats the later step differently: if the lawyer uses the gathered addresses to send the lawyer's own advertisements, those messages are advertisements subject to Rule 7.1 and may also be solicitations subject to Rule 7.3. The committee also flags that whether to apply the "Attorney Advertising" label depends on whether the communication is an advertisement, and that the lawyer's precautionary use of the label does not settle the question.

Common questions

Q: May a lawyer offer a free report in exchange for a reader's contact information?

A: Yes. The committee saw no ethical bar to offering a written copyright report in exchange for names and email addresses, citing N.Y. State 873 (¶ 10).

Q: Is the blog with an opt-in box a "solicitation" under Rule 7.3?

A: No, not standing alone. It is not delivered to or targeted at specific recipients and does not refer to a specific incident, so even if it is an advertisement it is not a solicitation (¶¶ 11-13).

Q: What about later emails sent to the subscribers?

A: If the lawyer uses the collected addresses to send the lawyer's advertisements, those communications are advertisements and may also be solicitations subject to Rule 7.3 (¶ 14, ¶ 15).

Q: Does labeling the blog "Attorney Advertising" settle whether it is an advertisement?

A: No. The committee stated a precautionary label is not dispositive; whether a communication is an advertisement depends on its primary purpose and other factors from N.Y. State 848 (¶ 9).

Background and rules framework

The opinion interprets New York Rule 1.0(a) (definition of "advertisement"), Rule 7.1(a), (f), and (h) (advertising requirements), and Rule 7.3(b) (definition of "solicitation"), corresponding to ABA Model Rules 7.1, 7.2, and 7.3. The analysis turns on whether the blog's primary purpose is retention of the lawyer and whether any communication is directed to or targeted at specific recipients.

Citations and references

Rules of Professional Conduct:

• NY RPC 1.0(a) (definition of "advertisement")
• MR 7.1 / NY RPC 7.1(a), (f), (h) (advertising; labeling; identifying information)
• MR 7.3 / NY RPC 7.3(b) (definition of "solicitation")

Cases:

• Hunter v. Virginia State Bar, 285 Va. 485, 744 S.E.2d 611 (Va. 2013), blog posts deemed commercial speech subject to advertising rules

Other opinions cited:

• N.Y. State 848 (2010): factors for whether a communication is an advertisement
• N.Y. State 967 (2013): a non-legal blog whose primary purpose is not retention is not an advertisement
• N.Y. State 873 (2011): offering a prize or item to join a lawyer's site
• N.Y. State 1016 (2014): a non-interactive commercial post is not an interactive computer-accessed communication

See also

• NY State Bar Op. 1049: Responding to and posting online requests for a lawyer
• NY State Bar Op. 1129: Law firm newsletters as advertising
• NY State Bar Op. 1232: Listing on a fertility clinic website, advertising vs. solicitation

Source

• Landing page: https://nysba.org/ethics-opinion-1039/