Is a law firm's educational newsletter or website an 'attorney advertisement' that must carry the 'Attorney Advertising' label and the exact prior-results disclaimer?
Apply this to your situation
This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion answers three questions about a firm that wants to publish an educational newsletter and already runs a website. First, whether the newsletter is an "advertisement" under Rule 1.0(a) depends on three factors the opinion identifies: the intent (primary purpose) of the communication, its content, and its targeted audience. A communication is an advertisement only if its primary purpose is "the retention of the lawyer or law firm." The opinion explains that merely including the firm's name, logo, and contact information does not convert an otherwise educational piece into advertising; drawing on Rule 7.1 Comments 7 and 8, it notes that topical newsletters and client alerts about developments in the law generally are not advertising, while a newsletter that is primarily about the firm's own cases, personnel, clients, or achievements generally would be.
On audience, the opinion applies Rule 1.0(a)'s exclusion of communications to existing clients and other lawyers, and adds that certain communications to former clients (germane to the prior representation) and to prospective clients who requested information are not advertising. The practical upshot the opinion states: if the newsletter is an advertisement and is mailed to the general public or circulated electronically where the audience is unknown, it must carry the "Attorney Advertising" label under Rule 7.1(f); copies sent only to existing clients, other lawyers, or the excepted former and prospective clients may omit the label.
Second, the opinion concludes that the prior-results disclaimer in Rule 7.1(e)(3), "Prior results do not guarantee a similar outcome," must be used in those exact words when an advertisement contains the kinds of claims listed in Rule 7.1(d). The opinion reasons that Rule 7.1 is drafted with great specificity (quotation marks, capitalization for the email subject line) and that this specificity dictates strict compliance; substantially similar language does not satisfy the rule, although a firm may add language that does not contradict the mandated disclaimer.
Third, the opinion concludes that a separate "similar results" disclaimer does not relieve a firm of the obligation to state "Attorney Advertising" on its website home page if the site is an advertisement. Under Rule 7.1(f), every advertisement other than the enumerated media exceptions must be labeled, and the home page is the website's first page for this purpose.
In practice
Under this opinion, a firm communication that meets the Rule 1.0(a) definition of advertisement (as it stood at the time of the opinion) is governed by Rule 7.1: it must carry the "Attorney Advertising" label, including on a website home page, unless an enumerated exception applies, and if it includes the results or comparison statements described in Rule 7.1(d), it must reproduce the Rule 7.1(e)(3) prior-results disclaimer verbatim. The opinion treats limited firm and contact references in an educational newsletter as not, by themselves, making the piece an advertisement.
Common questions
Q: Does adding the firm's name and contact information to an educational newsletter make it attorney advertising?
A: No, not by itself. The opinion states that including the firm's name, logo, and contact information does not transform an otherwise educational communication into advertising; what controls is whether the primary purpose is retention and whether the content is primarily about the firm.
Q: Can a firm paraphrase the "Prior results do not guarantee a similar outcome" disclaimer?
A: No. The opinion concludes the exact Rule 7.1(e)(3) language is required when the advertisement contains Rule 7.1(d) claims; substantially similar wording does not comply, though a firm may add non-contradictory language alongside it.
Q: Does a "similar results" disclaimer on the website excuse the firm from labeling the home page "Attorney Advertising"?
A: No. The opinion concludes that under Rule 7.1(f) the "Attorney Advertising" label must appear on the home page if the website is an advertisement, and the presence of the prior-results disclaimer does not substitute for it.
Q: Do copies of an advertising newsletter sent only to existing clients still need the label?
A: No. The opinion explains that Rule 1.0(a) excludes communications to existing clients and other lawyers, so versions sent only to those recipients (and to the excepted former and prospective clients) may omit the "Attorney Advertising" label.
Background and rules framework
The opinion interprets New York Rule 1.0(a), which defines "advertisement," and Rule 7.1, which governs the content and format of lawyer advertising, including the results and comparison statements allowed by Rule 7.1(d), the mandatory disclaimers in Rule 7.1(e), and the "Attorney Advertising" labeling requirement in Rule 7.1(f). New York's advertising provisions are codified at Rule 7.1, with no single Model Rule counterpart; the closest Model Rule analogues are MR 7.1 (communications concerning a lawyer's services) and MR 7.2 (advertising). The opinion notes in a footnote that Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), held parts of Rule 7.1 unconstitutional.
Citations and references
Rules of Professional Conduct:
- MR 7.1 (communications concerning a lawyer's services)
- MR 7.2 (advertising)
- NY Rule 1.0(a) (definition of "advertisement")
- NY Rule 7.1(d), (e)(3), (f) (permitted content, mandatory disclaimer, "Attorney Advertising" label)
Cases:
- Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), affirming that certain Rule 7.1 provisions are unconstitutional
See also
- NY State Bar Op. 877: Permissible information on a law firm website
- NY State Bar Op. 883: Attorney advertisement using a fictitious law firm
- NY State Bar Op. 873: Offering a prize to join an attorney's social network
- NY State Bar Op. 851: Using a law firm photograph in a newspaper advertisement
Source
- Landing page: https://nysba.org/ethics-opinion-848/
Get today's answer for your situation
You just read a 2010 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.