Ezel / Ethics Opinions / NYSBA
NYSBA 2011-06-09

Can a lawyer offer a prize as an incentive for people to connect with the lawyer on Facebook, LinkedIn, or other social networking sites?

Short answer: Yes, assuming the prize offer is not itself illegal. But if the offer's primary purpose is retention of the lawyer, it becomes an advertisement subject to Rule 7.1, and if it is also targeted at specific recipients with a significant pecuniary motive, it is a solicitation subject to Rule 7.3. Either way, the offer must be truthful under Rule 8.4(c).
Currency note: this opinion is from 2011
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 873: Prizes to Join a Lawyer's Social Network

Short answer: A lawyer may offer a prize to people who connect with the lawyer on social media, but depending on its purpose and targeting the offer may be an advertisement under Rule 7.1, a solicitation under Rule 7.3, or neither; in every case it must be truthful.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquirer uses social networking sites including Facebook, LinkedIn, and MySpace and proposed offering a chance to win a prize to people who connect with the inquirer (for example, by becoming a new "friend" or "contact"), as a way to build the network and market the inquirer's legal services. The committee assumed the prize would be awarded randomly simply for connecting, with no requirement or invitation to retain the inquirer as a condition of eligibility. It noted it does not opine on whether sweepstakes or games-of-chance laws, or a site's terms of use, would permit the offer; it addressed only the Rules of Professional Conduct, assuming the proposal is otherwise legal.

The committee analyzed three layers. First, whether the offer is an "advertisement" under Rule 1.0(a), which turns on whether its "primary purpose" is retention of the lawyer. The committee held that if the prize offer is merely posted on the lawyer's own sites and people gain a chance to win simply by connecting (not by retaining the lawyer), it is not likely an advertisement, even if the site elsewhere identifies the inquirer as an attorney; the offer is comparable to joining a Chamber of Commerce or bar association to meet potential clients. But if the offer itself describes the inquirer as an attorney or describes the inquirer's legal services or firm, it would be an advertisement subject to Rule 7.1, including the "Attorney Advertising" label requirement.

Second, if the offer is an advertisement, the committee asked whether it is also a "solicitation" under Rule 7.3(b), which adds the requirements that it be directed to or targeted at a specific recipient or group with a significant motive of pecuniary gain. The committee also addressed the Rule 7.3(a) ban on real-time or interactive computer-accessed communication, citing Comment [9] to Rule 7.3 that "[o]rdinary email and websites are not considered to be real-time or interactive communication." So merely posting the offer on a site or sending it by email does not make it a prohibited real-time communication.

Third, the committee held the offer does not violate Rule 7.2(a)'s ban on paying for referrals, because the inquirer offers a prize for connecting, not for recommending or retaining the lawyer. Regardless of how the communication is characterized, it remains subject to Rule 8.4(c)'s prohibition on dishonesty, fraud, deceit, or misrepresentation.

In practice

The opinion holds that, under Rules 7.1, 7.2, 7.3, and 8.4 as they stood at the time, a prize offer to join a lawyer's social network is not prohibited so long as it is not illegal conduct. Whether it is an "advertisement" turns on the factual question of whether its primary purpose is retention: an offer that merely lets people win by connecting, posted on the lawyer's own site, is unlikely to be an advertisement, while an offer that describes the lawyer or the lawyer's services is one and must comply with Rule 7.1. An advertisement that is also targeted at specific recipients with a significant pecuniary motive is a solicitation under Rule 7.3. Posting on a site or emailing the offer is not a prohibited real-time or interactive communication. The committee held the offer does not run afoul of the Rule 7.2(a) referral ban, because it pays for connecting rather than for recommending the lawyer, and that the offer must be truthful under Rule 8.4(c) in all events.

Common questions

Q: Do I have to label a "connect and win" social media offer as Attorney Advertising?

A: Only if the offer is an advertisement. The committee held that if the offer itself describes you as an attorney or describes your legal services or firm, it is an advertisement subject to Rule 7.1, including the "Attorney Advertising" label; if it merely lets people win by connecting, it is unlikely to be one.

Q: Is posting a prize offer or emailing it a prohibited real-time solicitation?

A: No. The committee, citing Comment [9] to Rule 7.3, held that ordinary email and websites are not real-time or interactive computer-accessed communications, so posting the offer on a site or sending it by email is not prohibited under Rule 7.3(a).

Q: Does paying a prize for connections violate the ban on paying for referrals?

A: No. The committee held Rule 7.2(a) is not violated because the prize is offered for connecting on a social networking site, not for recommending or retaining the lawyer.

Background and rules framework

The opinion interprets New York Rules 7.1 (advertising), 7.2 (payment for referrals), 7.3 (solicitation), and 8.4(c) (misconduct), corresponding to ABA Model Rules 7.1, 7.2, 7.3, and 8.4. The analysis turns on the definitions in Rule 1.0(a) ("advertisement"), Rule 1.0(c) ("computer-accessed communication"), and Rule 7.3(b) ("solicitation"). The committee noted it does not opine on questions of law such as sweepstakes regulation, nor on a social network's terms of use.

Citations and references

Rules of Professional Conduct:

  • MR 7.1 / NY Rule 7.1 and Rule 1.0(a): advertising and the definition of "advertisement"
  • MR 7.2 / NY Rule 7.2(a): no compensation to recommend or obtain employment
  • MR 7.3 / NY Rule 7.3 and Rule 1.0(c): solicitation, real-time communication, and "computer-accessed communication"
  • MR 8.4 / NY Rule 8.4(c): no conduct involving dishonesty, fraud, deceit, or misrepresentation

See also

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