Can a law firm send a newsletter bearing its name, prepared by an outside service, to people who are not its clients?

Plain-English summary

The committee was asked under what circumstances a law firm may distribute a newsletter bearing its name that has been prepared by others. The proposed newsletter would carry the firm name and would clearly explain that it was prepared and published by an independent service organization. The firm proposed to send it both to clients and to non-clients described as having some professional relationship with the firm.

The committee traced its prior rulings: N.Y. State 63 (1967) allowed a lawyer to distribute a monthly form letter to clients describing changes in the law; N.Y. State 211 (1971) allowed distribution of bar-association publications that did not name a particular lawyer or firm, where motivated by a desire to benefit the public rather than to increase employment; and N.Y. State 401 (1975) allowed a firm's name to appear on a newsletter it prepared for a client and the client distributed, so long as the firm's competence or reputation was not promoted. It framed the question as striking a balance between Code provisions that encourage lawyers to assist the public in recognizing legal problems and those that prohibit improper solicitation (cf. EC 2-2, 2-3, 2-4 with DR 2-101, 2-103, 2-104).

The committee found no impropriety in distributing the newsletter to the firm's clients, provided its origins were fully disclosed and clients were cautioned not to resolve individual problems solely on the basis of its contents (EC 2-5). It reasoned there is little danger of solicitation in communicating with persons who have already retained the firm, and that the material going beyond the scope of the present retainer is of no significance to the ethical rule.

For non-clients a different standard applied. The committee held that because the newsletter identified the firm by name and its contents could be of no more than general interest, distributing it to persons who are not clients would inevitably create the appearance of solicitation. It therefore concluded that distribution of the proposed newsletter to non-clients would be improper (DR 2-101(A) and (B); EC 9-6).

Currency note

This opinion was issued in 1977, after Bates v. State Bar of Arizona (1977) but before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (lawyer advertising is now governed by Rule 7.1, communications and payment for recommendations by Rule 7.2, and solicitation by Rule 7.3). The Code's broad bar on advertising and solicitation applied here has since been substantially narrowed by constitutional commercial-speech doctrine. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm send a newsletter prepared by an outside vendor under its own name?

A: Under this opinion, yes, to its clients, provided the firm fully discloses that the newsletter was prepared and published by an independent service and cautions clients not to rely on it for their individual problems.

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

A: No. The committee held that sending a firm-named, generally informative newsletter to non-clients would inevitably create the appearance of solicitation and was improper under the Code as it then stood.

Q: Why does it matter whether the recipient is already a client?

A: The committee reasoned there is little danger of solicitation in communicating with someone who has already retained the firm, but communicating the same material to non-clients carries a substantially greater appearance of solicitation.

Background and rules framework

The opinion applies the Code's advertising and solicitation provisions, EC 2-2 through EC 2-5 and EC 9-6 (assisting the public versus the appearance of impropriety) against DR 2-101(A) and (B), DR 2-103, and DR 2-104 (the then-applicable limits on advertising and solicitation). The current Model Rule analogues are Rule 7.1 (communications about a lawyer's services), Rule 7.2 (advertising and payment for recommendations), and Rule 7.3 (solicitation of clients).

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising)
• MR 7.3 (solicitation of clients)
• NY EC 2-2, EC 2-3, EC 2-4, EC 2-5, EC 9-6; DR 2-101(A), DR 2-101(B), DR 2-103, DR 2-104

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), commercial-speech protection for lawyer advertising

Other opinions cited:

• N.Y. State 63 (1967); N.Y. State 211 (1971); N.Y. State 401 (1975): firm communications and newsletters

See also

• NY State Bar Op. 1001: Selling advertising in a law firm newsletter
• NY State Bar Op. 1039: A blog opt-in box as advertising or solicitation
• NY State Bar Op. 1016: Advertising by email to internet message boards

Source

• Landing page: https://nysba.org/opinion-458/