Can a New York law firm pay to be the recommended firm in a real estate broker's homebuyer brochure?

Plain-English summary

A real estate broker proposed a brochure, "Family Relocation Passport and Professional Services," listing professional services for home buyers moving into the area. Under the heading for attorneys, the brochure recommended engaging an experienced law firm and then named one particular firm as concentrating in that area, with the firm paying a fee for the listing. The committee was asked whether a law firm could properly be listed that way.

The committee held the arrangement improper. It declined to decide whether the listing was an illegal solicitation under Judiciary Law section 479, noting that it does not pass on questions of law (and reviewing In re Alessi, in which the Court of Appeals upheld section 479 and DR 2-103(A) against a lawyer's direct-mail advertising to real estate brokers, on the ground that the concern is advertising through a third party whose interests may be more closely intertwined with the lawyer's than with the client's). Under the Code, the committee concluded the paid listing constitutes a giving of value to a third party, and a request by the lawyer that the third party recommend the lawyer's services, which DR 2-103(B) and (C) prohibit. It also found the listing misleading in violation of DR 2-101(A), because the purported recommendation is in actuality a paid-for, undisclosed advertisement. The question was answered in the negative.

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 (lawyer advertising now appears at Rule 7.1, and payment for recommendations and referrals at Rule 7.2). Lawyer-advertising rules have changed substantially since this opinion, including after later First Amendment decisions. 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 Treat this page as historical context, not current guidance.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 law firm pay to be the recommended firm in the broker's brochure?

A: No. The committee held that paying a third party to recommend the lawyer's services violates DR 2-103(B) and (C).

Q: Why was the listing also misleading?

A: Because it presented a paid advertisement as an independent recommendation. The committee held the undisclosed paid-for nature of the listing made it misleading under DR 2-101(A).

Q: Did the committee decide whether this was illegal solicitation?

A: No. The committee expressly declined to opine on whether the listing was an illegal solicitation under Judiciary Law section 479, because it does not decide questions of law.

Background and rules framework

The opinion applied DR 2-101(A) (false or misleading advertising), and DR 2-103(B) and (C) (giving value for, or requesting, a recommendation of the lawyer's services). The closest current Model Rule analogues are Rule 7.1 (communications about a lawyer's services) and Rule 7.2 (advertising; payment for recommendations and referrals).

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising; payments for recommendations)
• NY DR 2-101(A); DR 2-103(B); DR 2-103(C)

Statutes:

• Judiciary Law section 479 (solicitation through third parties; not decided here)

Cases:

• In re Alessi, 60 N.Y.2d 229 (1983): upheld Judiciary Law section 479 and DR 2-103(A) against direct-mail advertising to real estate brokers

See also

• NY State Bar Op. 565: Third-party solicitation and dividing fees with nonlawyers
• NY State Bar Op. 597: Advertising service plans versus referral

Source

• Landing page: https://nysba.org/opinion-566/