Can a lawyer mail bar association 'Know Your Rights' pamphlets to clients and non-clients and mention them in advertising?

Plain-English summary

The committee was asked two questions: whether a lawyer may distribute the New York State Bar Association's "Know Your Rights Pamphlet Series" in a general mailing to clients and non-clients, and whether the lawyer may mention the pamphlets' availability in his own advertisements. It answered both in the affirmative.

The committee began from DR 2-101, which permits lawyer advertising and publicity that is not false or deceptive and that contains no puffery, self-laudation, or unverifiable claims about the quality of the lawyer's services. It noted that direct-mail advertising had already been approved in N.Y. State 507 (1979) and N.Y. State 508 (1979), and that the Court of Appeals in Matter of Koffler, 51 N.Y.2d 140 (1980), held that Judiciary Law section 479 and DR 2-103(A) could not constitutionally be read to bar direct-mail advertising.

The committee then revisited its pre-Bates opinions N.Y. State 211 (1971) and N.Y. State 46 (1967), which had allowed lawyers to share bar association pamphlets but prohibited wholesale distribution by mail or attaching the lawyer's name or business card. In light of DR 2-101, Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and Koffler, the committee concluded that those limitations could no longer be applied, and it overruled N.Y. State 211 and 46 to the extent they prohibited using bar association pamphlets in direct-mail advertising.

Currency note

This opinion was issued in 1982, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the bar on false or misleading communications now appears at Rule 7.1, advertising at Rule 7.2, and solicitation and direct contact at Rule 7.3). New York's advertising and solicitation rules have changed since this opinion. Treat this page as historical context, not current guidance.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 lawyer mail bar association pamphlets to people who are not clients?

A: Yes. The committee held a lawyer may distribute the "Know Your Rights" pamphlets in a general mailing to clients and non-clients.

Q: Can the lawyer attach his name or business card to the pamphlets?

A: Yes. The committee overruled the older restriction against attaching the lawyer's name or card, relying on DR 2-101, Bates, and Koffler.

Q: Can the lawyer mention the pamphlets in his advertising?

A: Yes, provided the advertising is not false or deceptive and avoids puffery or unverifiable quality claims under DR 2-101.

Background and rules framework

The opinion applied DR 2-101 (advertising and publicity) and DR 2-103(A) (solicitation), read in light of Bates and Matter of Koffler, to a lawyer's distribution of bar association consumer pamphlets. The closest current Model Rule analogues are Rule 7.1 (communications concerning 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 DR 2-101, DR 2-103(A)

Statutes:

• N.Y. Judiciary Law section 479 (solicitation; held not to bar direct mail)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising
• Matter of Koffler, 51 N.Y.2d 140 (1980), cert. denied, 451 U.S. 1009 (1981), direct-mail advertising

Other opinions cited:

• N.Y. State 507 (1979); N.Y. State 508 (1979): direct-mail advertising permitted
• N.Y. State 211 (1971); N.Y. State 46 (1967): older pamphlet limits, overruled in part

See also

• NY State Bar Op. 539: Advertising results obtained in prior cases
• NY State Bar Op. 563: Advertising discounted fees
• NY State Bar Op. 559: Advertising in a law school alumni directory

Source

• Landing page: https://nysba.org/opinion-540/