Can a New York lawyer mail an advertisement to corporate executives he has no relationship with, and what may it say?

Plain-English summary

A lawyer formerly employed by a government agency, now in private practice, asked whether he could mail an announcement of his availability for corporate work to 2,000 corporate executives with whom he had no special relationship, and whether the announcement could mention his former agency employment, his active practice before that agency, and his "philosophy of practice." The committee answered the first three yes and the fourth no.

It began from DR 2-101, which after Bates v. State Bar of Arizona, 433 U.S. 350 (1977), permits advertising that is not false, deceptive, or misleading, does not reflect adversely on the profession, and avoids puffery, self-laudation, and unverifiable quality claims. The committee noted DR 2-103(A) bars solicitation "in violation of any statute or court rule," and that DR 2-100(A) likewise bars advertising that violates a statute or court rule, so an advertisement violating a valid statute cannot satisfy DR 2-101. It quoted Judiciary Law section 479, which makes it unlawful to solicit legal business, but stated the committee lacks jurisdiction to decide questions of law: if a court were to hold that mailing such a letter violates section 479, and that the statute survives Bates, the mailing would be unethical.

Absent such a holding, the committee saw no impropriety. In an era of direct-mail advertising, it reasoned, an advertisement satisfying DR 2-101 "does not become an improper solicitation merely because it is placed in the recipient's mail box by a postman rather than by a newsboy"; the medium is irrelevant so long as DR 2-101's standards are met and the method does not violate a valid statute. On content, a lawyer may identify the fields he practices in (DR 2-105(A)) and may truthfully and non-deceptively note public offices held and practice before government agencies (DR 2-101(C)(1)). But a reference to his "philosophy of practice," such as "maintaining a rapport as distinguished from an antagonistic relationship with governmental agencies," is improper: it is a claim that cannot be measured or verified and reads as self-laudation, and coupled with the references to past agency employment could imply an ability to influence the agency improperly, in violation of DR 9-101(C).

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (advertising and solicitation are now governed mainly by Rules 7.1, 7.2, and 7.3). Subsequent rule amendments or later opinions may have changed the analysis. 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: Could the lawyer mail his advertisement to strangers rather than place it in the media?

A: Under this opinion, yes, absent a court ruling that the mailing violates Judiciary Law section 479. The committee held the medium does not matter so long as DR 2-101's content standards are met.

Q: Could the announcement mention his former government job and his practice before the agency?

A: Yes. The committee found a truthful, non-deceptive reference to public offices held and to practice before government agencies proper under DR 2-101(C)(1).

Q: Why was the lawyer's "philosophy of practice" line improper?

A: Because it was an unverifiable, self-laudatory claim under DR 2-101(B), and combined with the agency references could imply improper influence over the agency in violation of DR 9-101(C).

Background and rules framework

The opinion applied DR 2-101 (the post-Bates advertising standard), DR 2-103(A) and DR 2-100(A) (solicitation and advertising that violate a statute or court rule), DR 2-105(A) (identifying practice areas), and DR 9-101(C) (implying improper influence on a government agency), against Judiciary Law section 479. The current Model Rule analogues are Rule 7.1 (communications about a lawyer's services), Rule 7.2 (advertising), 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 1-5; DR 2-100(A), 2-101, 2-102, 2-103(A), 2-105(A), 9-101(C)

Statutes:

• N.Y. Judiciary Law section 479 (unlawful solicitation of legal business)

Cases:

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

Other opinions cited:

• N.Y. State 487 (1978): reference to practice before government agencies

See also

• NY State Bar Op. 508: Promoting a legal seminar by mail
• NY State Bar Op. 505: Publicizing the opening of a law office
• NY State Bar Op. 539: Advertising results in prior cases

Source

• Landing page: https://nysba.org/opinion-507/