Is an out-of-state firm's mass email to a list of New Yorkers seeking class-action plaintiffs a regulated solicitation?
NYSBA Ethics Opinion 1227: A Targeted Email Blast as a Solicitation
Short answer: The opinion concludes that an email blast to a list of specific New York individuals seeking named plaintiffs for future class actions is both an advertisement and a solicitation under Rules 7.1 and 7.3, and New York's solicitation rules apply to the out-of-state firm because it solicits retention by New York residents.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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
The inquirer is a partner in a California firm with no New York office, though one partner is admitted in New York. The firm wants to send an "email blast" to New York individuals, drawn from purchased lists, seeking named plaintiffs for future false-advertising and products-liability class actions. The firm has no information about the recipients, including whether they were harmed by the products or ads at issue. The inquirer asks whether the proposed email is a "solicitation" under Rule 7.3.
The committee first addresses jurisdiction. Rule 7.3(i) extends the rule to lawyers and firms not admitted in New York who solicit retention by New York residents, so the committee has authority to opine. It then applies the four-part test in Rule 7.3(b): a solicitation is an advertisement (1) initiated by the lawyer, (2) directed to or targeted at a specific recipient or group, (3) with retention as the primary purpose, and (4) pecuniary gain as a significant motive. The email is first an "advertisement" under Rule 1.0(a) because it is about the firm's services and its primary purpose is retention. Three of the four solicitation criteria are plainly met: the firm initiates the email, its primary purpose is retention, and a significant motive is pecuniary gain.
On the remaining "targeted" element, Comment [3] to Rule 7.3 explains that an advertisement is targeted if addressed so that it will be delivered to specific recipients (letters, emails, express packages), and such communications are treated as solicitations because, unlike public-media or website advertising, they are not readily reviewable by disciplinary authorities. The committee, drawing on N.Y. State 1009 (2014), 1039 (2014), and 1136 (2014) (and distinguishing N.Y. State 1016 (2014)), concludes the email is targeted at specific recipients on a purchased list. It does not matter that the firm knows nothing about the recipients, that the group is large, or that members share no particular characteristic; sending to a list of specific individuals makes it a solicitation under Rule 7.3(b).
In practice
Under this opinion, a firm's email blast to a list of specific individuals seeking clients is a solicitation governed by both the general advertising rules and the special solicitation rules of Rule 7.3, regardless of the size of the list or how little the firm knows about the recipients. Per the opinion, New York's rules reach an out-of-state firm that solicits New York residents (Rule 7.3(i)), and what makes a private email a solicitation, as opposed to public-media or website advertising, is that it is delivered to specific recipients and is not readily reviewable by disciplinary authorities.
Common questions
Q: Is a mass email to a purchased list a solicitation, or just advertising?
A: Per the opinion, it is both; the email is an advertisement under Rule 1.0(a) and, because it is initiated by the firm, targeted at specific recipients, aimed at retention, and motivated by pecuniary gain, it is also a solicitation under Rule 7.3(b).
Q: Does it matter that the firm knows nothing about the people on the list?
A: No. Per the opinion, it does not matter that the firm lacks information about the recipients, that the group is large, or that members share no characteristic; sending to a list of specific individuals suffices.
Q: Do New York's rules apply to an out-of-state firm with no New York office?
A: Per the opinion, yes; Rule 7.3(i) extends the solicitation rules to lawyers and firms not admitted in New York who solicit retention by New York residents.
Q: Why are targeted emails treated more strictly than website ads?
A: Per the opinion, public-media and website advertising are accessible and reviewable for compliance, while private communications like emails and direct mail are not readily reviewable by disciplinary authorities, so they are subject to the stricter solicitation rules.
Background and rules framework
The opinion interprets the definition of "advertisement" in New York Rule 1.0(a), the advertising requirements of Rule 7.1, the four-part "solicitation" definition in Rule 7.3(b), and the extraterritorial reach of Rule 7.3(i). These correspond to ABA Model Rules 7.1 and 7.3.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.0(a), 7.1, 7.3(b) and Cmts. [2]-[3], 7.3(i)
- ABA Model Rules 7.1, 7.3 (analogues)
Other opinions cited:
- N.Y. State 1009 (2014), 1039 (2014), 1136 (2014): targeted email and written communications as solicitations
- N.Y. State 1016 (2014): an emailed ad to all members of internet message boards held not a solicitation
See also
- NY State Bar Op. 1232: Clinic Website Listing as Advertising, Not Solicitation
- NY State Bar Op. 1294: Solicitation, Advertisement, and Lead Generators
Source
- Landing page: https://nysba.org/ethics-opinion-1227/