Is it advertising or prohibited solicitation for a lawyer to ask a fertility clinic to list him on its website as an assisted-reproduction lawyer?

Plain-English summary

The inquirer wants to ask a fertility clinic to add him to the list of attorneys on its website that it suggests for legal representation in assisted reproduction. He would not be seeking to be retained by the clinic itself. He asks whether the request is attorney advertising and, if so, whether it is also a solicitation.

The opinion treats the proposed listing as advertising. Rule 1.0(a) defines an "advertisement" as a communication about a lawyer's services whose primary purpose is the lawyer's retention; because the inquirer wants to communicate his practice area to website visitors so they might retain him, the listing is advertising subject to Rule 7.1's requirements.

It is not, however, a solicitation. Rule 7.3(b) defines "solicitation" as advertising directed to or targeted at a specific recipient or group, with retention as the primary purpose and pecuniary gain as a significant motive. The listing meets the retention and pecuniary-gain elements but is not directed at or targeted at a specific recipient. Comment [4] to Rule 7.3 presumes that public-media advertisements (newspapers, television, billboards, websites) are not targeted, and the fact that some viewers may need the service does not convert the ad into a solicitation. Comment [3]'s "specific incident" exception, limited by Comment [5] to particular identifiable events causing personal injury or wrongful death (traffic accidents, crashes, explosions, building collapses), does not apply. The opinion closes with a caution: under Rule 7.2, the inquirer may not give the clinic anything of value in exchange for the listing, as that would be an improper payment for a referral.

In practice

Under this opinion, a lawyer who asks a clinic or similar organization to list him on its website as practicing in a given area is engaged in attorney advertising and must meet Rule 7.1, but the listing is not a solicitation under Rule 7.3 because it is not directed at a specific recipient. Per the opinion, the lawyer may not pay or give anything of value to the clinic for the listing, which would violate Rule 7.2's bar on paying for referrals.

Common questions

Q: Is asking to be listed on a third party's website attorney advertising?

A: Per the opinion, yes; under Rule 1.0(a) the listing's primary purpose is retention, so it is advertising subject to Rule 7.1.

Q: Is the website listing a prohibited solicitation?

A: No. Per the opinion, a website listing is presumed not directed at or targeted at a specific recipient (Rule 7.3 Comment [4]), so it does not meet the definition of solicitation in Rule 7.3(b).

Q: Can the lawyer pay the clinic to be included on its website?

A: No. Per the opinion, giving the clinic anything of value for the listing would be an improper payment for a referral under Rule 7.2.

Q: When would a website ad become a solicitation?

A: Per the opinion, only if it refers to a specific person or group whose legal needs arise from a specific identifiable incident (Comments [3] and [5] to Rule 7.3), such as a traffic accident, crash, explosion, or building collapse.

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 definition of "solicitation" in Rule 7.3(b) (with Comments [3], [4], and [5]), and the payment-for-referrals prohibition in Rule 7.2. These correspond to ABA Model Rules 7.1, 7.2, and 7.3.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(a), 7.1, 7.2, 7.3(b) and Cmts. [3]-[5]
• ABA Model Rules 7.1, 7.2, 7.3 (analogues)

See also

• NY State Bar Op. 1294: Solicitation, Advertisement, and Lead Generators
• NY State Bar Op. 1267: Paying for a Recommendation or Referral
• NY State Bar Op. 1235: A Law Firm Operating Under Two Assumed Names

Source

• Landing page: https://nysba.org/ethics-opinion-1232/