NYSBA April 7, 2021

After a lawyer changes firms, may she contact the clients she used to represent to tell them she has moved and offer to review their estate plans?

Short answer: Yes. The opinion concludes that a communication to former clients that is germane to the earlier representation is neither an advertisement nor a solicitation, so Rules 7.1 and 7.3 do not apply; it must still be truthful under Rule 8.4(c).

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This page answers the general question as of 2021. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Plain-English summary

The inquirer practiced elder law and left her firm for a new one. With the old firm's approval, she had sent about 1,100 current and former clients (most elderly or disabled) a departure notice with a file-transfer instruction offering three options: stay at the old firm, follow her to the new firm, or take the file back. Many clients elected to follow her but sent their signed forms to the old firm, which then would not give her the list of those clients or transfer their files and funds despite months of requests. Many of these clients could not find her or her new firm through an online search. She asked whether she could directly contact the clients she had represented to remind them she had moved and offer to review and update their estate plans.

The opinion answers yes as a matter of ethics. It first notes the contract and partnership-law issues, and the conduct of the former firm's lawyers, are outside the committee's jurisdiction. On the ethics question, the communication is not an "advertisement" as defined in Rule 1.0(a). While Rule 1.0(a) excludes existing clients but not former clients by its terms, Comment [7] to Rule 7.1 provides that communications to former clients germane to the earlier representation are not advertising (citing N.Y. State 1129, N.Y. State 848, and other authority). Because it is not an advertisement, it also is not a solicitation: Comment [1] to Rule 7.3 explains that all solicitations are advertisements with added characteristics, so a communication that is not an advertisement cannot be a solicitation.

The opinion adds two points. Even if Rule 7.3 applied, it expressly does not prohibit solicitation of a former client (Rule 7.3(a) excepts close friends, relatives, former clients, and existing clients). And "germane" carries its ordinary meaning of closely related or relevant, citing N.Y. County 679 (1990); contacting former estate-planning clients to offer to review their estate plans is germane to the prior work. The one binding constraint is candor: under Rule 8.4(c) and Comment [6] to Rule 7.1, the communications must be truthful and free of misrepresentation.

In practice

Under this opinion, a New York lawyer who moves firms may directly contact the clients she previously represented, remind them she has joined a new firm, and offer services germane to the earlier representation (here, reviewing estate plans), without triggering the advertising rules in Rule 7.1 or the solicitation rules in Rule 7.3. Per the opinion, the communication must still be truthful and free of misrepresentation under Rule 8.4(c). Per the opinion, the analysis turns on whether the contact is germane, meaning closely related or relevant, to the prior matter.

Common questions

Q: Is a "I've moved firms" message to former clients an advertisement subject to Rule 7.1?

A: No, when it is germane to the earlier representation. Per the opinion, Comment [7] to Rule 7.1 treats germane communications to former clients as not advertising, so Rule 7.1 does not apply.

Q: Is contacting a former client a prohibited solicitation under Rule 7.3?

A: No. Per the opinion, a communication that is not an advertisement cannot be a solicitation, and in any event Rule 7.3(a) expressly permits solicitation of former clients.

Q: What does "germane" mean here?

A: Per the opinion, "germane" has its ordinary meaning of closely related or relevant (citing N.Y. County 679); offering former estate-planning clients a review of their estate plans qualifies.

Q: Are there any limits on what the lawyer can say?

A: Yes. Per the opinion, the communication must be truthful; Rule 8.4(c) forbids dishonesty, fraud, deceit, or misrepresentation, and Comment [6] to Rule 7.1 applies that rule to all lawyer communications.

Background and rules framework

The opinion interprets the definition of "advertisement" in Rule 1.0(a), the advertising rules in Rule 7.1 (with Comments [6] and [7]), the solicitation rules in Rule 7.3 (with Comment [1] and the exceptions in 7.3(a)), and the general prohibition on dishonesty in Rule 8.4(c). These correspond to ABA Model Rules 7.1, 7.3, and 8.4.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.0(a), 7.1 and Cmts. [6]-[7], 7.3 and Cmt. [1] and 7.3(a), 8.4(c)
ABA Model Rules 7.1, 7.3, 8.4 (analogues)

Other opinions cited:

N.Y. State 1129 (2017); N.Y. State 848 (2011): germane communications to former clients are not advertising
N.Y. County 679 (1990): meaning of "germane"
N.Y. County 748 (2015); N.Y. City Bar 2015-7 (2015); N.Y. State 1184 (2020)

Source

Landing page: https://nysba.org/ethics-opinion-1221/

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