Can a New York lawyer mail copies of newspaper articles about the lawyer directly to accident victims along with a letter offering legal services?

Plain-English summary

A lawyer asked whether copies of newspaper articles written about the lawyer could be mailed directly to accident victims along with a letter telling them legal services were available. Citing Shapero v. Kentucky Bar Association and a line of First Amendment cases (Bates, Zauderer, In re R.M.J., In re Primus, and the New York decisions von Wiegen and Koffler), the committee restated that a state may not flatly prohibit targeted direct-mail solicitation. Consistent with N.Y. State 507, it is not improper per se for a lawyer to mail a letter to potential clients apprising them of the availability of legal services, and the committee held that enclosing newspaper articles about the lawyer is likewise not improper per se.

The content of the mailing, however, must comply with DR 2-101. DR 2-101(A) bars advertising that is false, deceptive, or misleading, and DR 2-101(B) bars puffery, self-laudation, claims about the quality of the lawyer's services, and claims that cannot be measured or verified. The committee treated the use of a newspaper article in advertising as the lawyer's endorsement of the article's contents, so its guidelines on client testimonials from N.Y. State 614 applied: endorsements describing prior results that create unjustified expectations or false hopes are improper, and any endorsement describing prior results should carry a disclaimer that the result does not guarantee or predict a similar outcome in a future matter. Accordingly, if an article is likely to create an unjustified expectation about results, or contains an unverifiable claim, the lawyer cannot mail it without a disclaimer; if an article contains a statement the lawyer knows to be false, the lawyer must include a correction.

The committee added two limits. It would be improper to use the articles if the lawyer had engaged in improper conduct to cause them to be written; while a lawyer may try to persuade a newspaper to publish an article, DR 2-101(J) bars giving anything of value to the press in return for professional publicity, which would deceive the public into thinking the paper made an independent newsworthiness judgment. The committee also cautioned that targeted mailings to accident victims, who may be overwhelmed by their situation, carry potential for overreaching and undue influence (EC 2-10), and reminded the lawyer of the duty under DR 2-101(F) to file a copy of the mailing with the Departmental Disciplinary Committee. Subject to those qualifications, the committee answered the question in the affirmative.

Currency note

This opinion was issued in 1991, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009, and before the courts and bar substantially revised the lawyer-advertising and solicitation rules. 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: Can a New York lawyer mail newspaper articles about the lawyer to accident victims?

A: Yes, subject to conditions. The committee held that targeted direct mail enclosing articles about the lawyer is not improper per se, but the mailing as a whole must comply with the advertising rules in DR 2-101.

Q: When must the mailing include a disclaimer?

A: Where a newspaper article is likely to create an unjustified expectation about the results the lawyer can achieve, or contains a claim that cannot be verified, the committee said the lawyer may not mail it without a disclaimer that prior results do not guarantee or predict a similar outcome; if an article contains a statement the lawyer knows is false, the lawyer must add a correction.

Q: Can the lawyer pay to have the articles written?

A: No. The committee held that DR 2-101(J) prohibits giving anything of value to the press in return for professional publicity, and that using articles obtained through such improper conduct would be deceptive, though a lawyer may properly try to persuade a newspaper to publish an article.

Q: Are there filing or other obligations for the mailing?

A: Yes. The committee noted the lawyer must file a copy of the mailing with the Departmental Disciplinary Committee under DR 2-101(F), and cautioned under EC 2-10 against undue emphasis on advertising stratagems that hinder a recipient's intelligent selection of counsel.

Background and rules framework

The opinion interpreted DR 2-101 in its parts: subsection (A) (no false, deceptive, or misleading advertising), subsection (B) (no puffery, self-laudation, or unverifiable claims), subsection (F) (filing the mailing with the disciplinary committee), and subsection (J) (no payment to the press for professional publicity), with EC 2-10. The closest Model Rule analogues are Rule 7.1 (communications about a lawyer's services), Rule 7.2 (advertising), and Rule 7.3 (solicitation and direct contact with prospective 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; direct contact)
• NY DR 2-101(A); DR 2-101(B); DR 2-101(F); DR 2-101(J); EC 2-10

Cases:

• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988): no blanket ban on targeted direct-mail solicitation
• Bates v. State Bar of Arizona, 433 U.S. 350 (1977): attorney advertising may not be wholly suppressed
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); In re Primus, 436 U.S. 412 (1978): limits on bans of lawyer advertising and solicitation
• Matter of von Wiegen, 63 N.Y.2d 163 (1984); In re Koffler, 51 N.Y.2d 140 (1980): direct-mail solicitation under New York law

Other opinions cited:

• N.Y. State 507 (1979): mailing a letter to potential clients is not improper per se
• N.Y. State 614 (1990): guidelines on client testimonials and disclaimers
• N.Y. State 505 (1979); N.Y. State 508 (1979); N.Y. State 487 (1978): advertising content and the effects of Bates

See also

• NY State Bar Op. 625: Recorded legal messages and advertising on a 900 number
• NY State Bar Op. 1005: Misleading superlatives in lawyer advertising
• NY State Bar Op. 1010: Advertising second opinions to represented parties

Source

• Landing page: https://nysba.org/opinion-624/