Can a New York lawyer contact lay organizations to offer to speak to them about legal topics, and do the advertising and solicitation rules apply?

Plain-English summary

The committee was asked whether a lawyer may contact an organization of lay people to inform them that the lawyer is available as a public speaker on legal topics. It concludes the lawyer may, subject to qualifications.

The opinion traces the history: before Bates v. State Bar of Arizona (1977), New York's Disciplinary Rules barred all solicitation and limited educational programs to those under "proper auspices" such as bar associations. After Bates, the Code was revised so DR 2-103(A) prohibited only solicitations "in violation of any statute or court rule," and the sponsorship restrictions on public-education programs were removed. The committee notes that N.Y. State 508 (1979) accordingly allowed a firm to organize and promote legal seminars designed for non-lawyers.

The committee then applies the current Rules 7.1 and 7.3 (effective April 1, 2009). It quotes the Rule 1.0(a) definition of "advertisement" (a communication about a lawyer's services whose primary purpose is retention) and the Rule 7.3(b) definition of "solicitation" (an advertisement targeted at a specific recipient whose primary purpose is retention and a significant motive is pecuniary gain). Comment 9 to Rule 7.1 recognizes that a lawyer's participation in an educational program is ordinarily not advertising because its primary purpose is to educate, but "a program might be considered to be advertising if, in addition to its educational component, participants or recipients are expressly encouraged to hire the lawyer or law firm." The committee also notes Rule 7.1(q) (a lawyer may accept employment resulting from public-education activities) and Rule 7.1(r) (a lawyer may speak or write publicly on legal topics so long as he does not give individual advice). Applying these, the committee concludes a lawyer may contact a lay organization to offer to speak, but if the communication expressly encourages the audience to retain the lawyer or firm, it falls within "advertisement" and "solicitation" and must comply with Rules 7.1 and 7.3. The committee adds that it lacks jurisdiction to decide whether such contact is permitted under Judiciary Law section 479 or whether that statute remains constitutional after Bates.

In practice

The opinion holds that, under the New York rules as they stood at the time, the dividing line is the communication's purpose. Offering to speak to a lay group on legal topics is permitted and is ordinarily not advertising. The same outreach becomes an advertisement and a solicitation, triggering Rules 7.1 and 7.3, when it expressly encourages the audience to hire the lawyer or firm. The committee notes Rule 7.1(r) permits public speaking on legal topics only "so long as the lawyer does not undertake to give individual advice," and it expressly declines to opine on the separate Judiciary Law section 479 question.

Common questions

Q: Can a New York lawyer reach out to community groups offering to give a talk on a legal topic?

A: Yes. The opinion concludes a lawyer may contact a lay organization to inform it that the lawyer is available as a public speaker on legal topics, subject to the qualifications it sets out.

Q: When does offering to speak cross into advertising or solicitation?

A: The opinion concludes that if the communication is made expressly to encourage participants to retain the lawyer or firm, it falls within the Rule 1.0(a) "advertisement" and Rule 7.3(b) "solicitation" definitions and must comply with Rules 7.1 and 7.3.

Q: Can the lawyer give legal advice during the talk?

A: The opinion notes Rule 7.1(r) lets a lawyer speak publicly on legal topics "so long as the lawyer does not undertake to give individual advice."

Background and rules framework

The opinion interprets New York Rules 7.1 (advertising) and 7.3 (solicitation), the analogues of ABA Model Rules 7.2 and 7.3, along with the Rule 1.0(a) definition of "advertisement" and the Rule 7.3(b) definition of "solicitation." It relies on Comment 9 to Rule 7.1 and on Rules 7.1(q) and 7.1(r). It sets the analysis against the post-Bates deregulation of lawyer advertising in New York.

Citations and references

Rules of Professional Conduct:

• MR 7.2 (advertising); MR 7.3 (solicitation)
• NY RPC 1.0(a), 7.1(a), 7.1(q), 7.1(r); 7.3(a), 7.3(b); Comment 9 to Rule 7.1

Statutes:

• N.Y. Judiciary Law section 479 (solicitation by attorneys; committee notes it lacks jurisdiction over its application or constitutionality)

Cases:

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

Other opinions cited:

• N.Y. State 508 (1979): a firm may organize and promote legal seminars for non-lawyers
• N.Y. State 379 (1975): pre-Bates prohibition on contacting lay organizations

See also

• NY State Bar Op. 834: Disclaimer for advertisements with client testimonials
• NY State Bar Op. 839: Group radio advertising
• NY State Bar Op. 841: Emails to other lawyers seeking referrals
• NY State Bar Op. 1110: Seminars and webinars for non-lawyers

Source

• Landing page: https://nysba.org/ethics-opinion-830/