NYSBA October 1, 1984

Can a New York lawyer advertise a discount off customary fees to a civic group or the public for a limited time?

Short answer: The opinion concluded that a lawyer may offer and advertise a discount from customary fees, but only where the customary fee is reasonably ascertainable and is actually the fee the lawyer charges for most similar engagements; the full customary fee must be stated, and any limits on who qualifies or how long the offer lasts must be observed.

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This page answers the general question as of 1984. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer asked whether it was proper to offer or advertise a discount from customary fees, either to all members of a civic organization he belonged to or to the general public for a limited time. The committee's principal concern was that a discount offer can be misleading in violation of DR 2-101(A). It held that the offer is not per se improper, so long as the customary fee being discounted is reasonably ascertainable.

The committee located the difficulty in defining a "customary fee." Discounting a fee the lawyer does not regularly charge would be deceptive; the example given was advertising a discount off a $500 "customary" uncontested-divorce fee when the lawyer in fact charges many clients $400. For a fee to be customary, the committee said, it must be the fee charged for most of the lawyer's engagements involving similar work, something substantially more than a majority of similar cases. Routine services such as uncontested divorces, residential real estate transactions, and individual bankruptcies are amenable to fixed, and therefore discountable, fees. The committee did not foreclose discounting time-based or results-based fees where the lawyer can establish an ascertainable rate he consistently charges, giving the examples of a lawyer who customarily takes one-third of a negligence recovery or charges $100 per hour for corporate advice and then offers a percentage discount off that figure.

The committee added conditions on the form of the offer. If a discount is offered only to members of the civic organization, it may not be extended to the public; if offered only for a limited period, it may not be granted indefinitely. Whenever a discounted fee is offered or advertised, the full customary fee being discounted must also be stated so the offer is intelligible and not misleading, and any advertisement must comply with DR 2-101 and all applicable statutes and court rules. Subject to these qualifications, the question was answered in the affirmative.

Currency note

This opinion was issued in 1984, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the bar on false or misleading communications about a lawyer's services now appears at Rule 7.1, and advertising at Rule 7.2). New York's lawyer advertising rules have changed substantially since this opinion. 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: May a lawyer advertise a discount off customary fees?

A: Yes, the committee held it is not per se improper, provided the customary fee being discounted is reasonably ascertainable and the full customary fee is also stated.

Q: What counts as a "customary" fee for this purpose?

A: The committee said it must be the fee the lawyer charges for most similar engagements, something substantially more than a majority of similar cases, not a figure the lawyer rarely charges.

Q: Can a limited-time or members-only discount be advertised more broadly?

A: No. The committee held that any stated limit on eligibility or duration must be observed; a members-only discount may not go to the public, and a limited-time discount may not be granted indefinitely.

Background and rules framework

The opinion interpreted DR 2-101 (publicity and advertising), and DR 2-101(A) in particular, which bars false, deceptive, or misleading public communications about a lawyer's services. The closest current Model Rule analogues are Rule 7.1 (communications concerning a lawyer's services) and Rule 7.2 (advertising).

Citations and references

Rules of Professional Conduct:

MR 7.1 (communications concerning a lawyer's services)
MR 7.2 (advertising)
NY DR 2-101; DR 2-101(A), (C)(4), (E)

Source

Landing page: https://nysba.org/opinion-563/

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