Ezel / Ethics Opinions / NYSBA
NYSBA 2017-07-11

Can a New York law firm send an educational newsletter to a broad audience, and accept payment from a real estate brokerage to offset the cost?

Short answer: Yes to both, with limits. An educational newsletter is not advertising and may go beyond current and former clients; if it primarily promotes the firm it is advertising and must meet Rules 7.1 and 7.3. The firm may carry and attribute brokerage data and accept payment to defray costs, but not payment for referrals.
Currency note: this opinion is from 2017
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 Not binding precedent.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 1129: Law firm newsletters as advertising

Short answer: A law firm newsletter whose primary purpose is educational is not an "advertisement" and may be sent to a broader audience than current and former clients; if its primary purpose is to promote the firm, it is advertising and must comply with Rules 7.1 and 7.3. The firm may include and attribute a real estate brokerage's market data and accept payment to offset publication costs, so long as it is not paid for referring business.

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.

View original opinion

Plain-English summary

A residential real estate law firm wants to publish a newsletter carrying changes to local law plus market data supplied by a real estate brokerage firm. The firm has no referral relationship with the brokerage and pays it nothing for the data, but the brokerage has offered to help defray the firm's publishing costs. The firm wants to send the newsletter to current and former clients and also to customers of lenders the firm has represented (those customers consented to release of their contact information).

Following N.Y. State 848 (2010), the committee analyzes whether the newsletter is an "advertisement" under the Rule 1.0(a) definition, which turns on the primary purpose of the communication, judged by intent, content, and targeted audience. A newsletter that primarily educates recipients about developments in the law is not advertising; one that is primarily about the firm (its cases, personnel, clients, or achievements) generally is advertising and must comply with Rule 7.1. A communication to existing clients, other lawyers, former clients on germane matters, or prospective clients who asked for information is not advertising regardless.

For the lender customers, the committee says it lacks enough facts to decide, and points to N.Y. State 1110 (2016): if the newsletter is advertising and is targeted to specific recipients with a significant motive of pecuniary gain, it is also a "solicitation," so Rule 7.3 applies on top of Rule 7.1. On the brokerage content, no Rule bars including the data or attributing it; if the newsletter is advertising it must not be false, deceptive, or misleading (Rule 7.1(a)). On the payment, the committee applies N.Y. State 1001 (2014): the firm may accept money to defray costs but may not accept payment for referring clients to the brokerage, must not expressly or impliedly recommend the brokerage, and should disclose the payment to readers. Finally, a significant payment from the brokerage could create a Rule 1.7(a) personal-interest conflict in deals where the brokerage earns a commission; that conflict may be consentable under Rule 1.7(b) if the lawyer reasonably believes competent, diligent representation is possible.

In practice

Under this opinion, a New York firm may publish an educational newsletter and send it broadly without triggering the advertising rules, but a newsletter built around the firm's own cases, personnel, or achievements is advertising subject to Rule 7.1, and if targeted with a pecuniary motive it is also a solicitation subject to Rule 7.3. The firm may carry a brokerage's market data, identify the source, and accept money to offset publication costs; it may not take money for referrals or imply a recommendation, and it should disclose to readers that the brokerage is paying. A significant payment may create a Rule 1.7(a) conflict in transactions where the brokerage stands to earn a commission, curable by informed written consent under Rule 1.7(b) where the lawyer reasonably believes the representation will not be impaired.

Common questions

Q: Does a law firm newsletter have to be labeled "attorney advertising"?

A: Only if it is an advertisement. Under Rule 1.0(a), that turns on the newsletter's primary purpose; a genuinely educational newsletter is not advertising and need not carry the label or meet Rule 7.1, while one primarily promoting the firm does (Opinion 1129 ¶¶ 5-8).

Q: Can the firm send the newsletter to people who are not its clients?

A: An educational newsletter may go to a broader audience. If the newsletter is advertising and is targeted to specific non-client recipients with a significant motive of pecuniary gain, it becomes a solicitation and Rule 7.3 applies as well (¶¶ 9-11).

Q: Can the firm take money from the brokerage to help pay for the newsletter?

A: Yes, to defray publishing costs, following N.Y. State 1001. The firm may not accept payment for referring clients to the brokerage, must avoid any express or implied recommendation of the brokerage, and should disclose the payment to readers (¶¶ 14-15).

Q: Does accepting the brokerage's money create a conflict?

A: It can. If the payment is significant, Rule 1.7(a) is implicated in transactions where the brokerage earns a commission only if the deal closes; the conflict may be consentable under Rule 1.7(b) with the client's informed written consent (¶¶ 16-17).

Background and rules framework

The opinion applies the Rule 1.0(a) definition of "advertisement," Rule 7.1 (Model Rule 7.1) on lawyer advertising including the labeling and record-retention requirements in Rule 7.1(f) and (k), and Rule 7.3 (Model Rule 7.3) on solicitation. It also applies Rule 1.7 (Model Rule 1.7) on personal-interest conflicts to the question of whether the brokerage's payment compromises the firm's judgment for clients.

Citations and references

Rules of Professional Conduct:

  • New York Rule 1.0(a): definition of "advertisement"
  • New York Rule 7.1(a), (f), (k) (Model Rule 7.1): advertising; labeling; record retention
  • New York Rule 7.3 (Model Rule 7.3): solicitation
  • New York Rule 1.7(a), (b) (Model Rule 1.7): personal-interest conflicts; consent

Other opinions cited:

  • N.Y. State 848 (2010): three-factor test for when a newsletter is an advertisement
  • N.Y. State 1110 (2016): seminars and invitations as advertising/solicitation
  • N.Y. State 1001 (2014): selling third-party advertising in a firm newsletter
  • N.Y. State 958 (2013); 667 (1994); 461 (1977): consent where a third party compensates the lawyer

See also

Source