NYSBA 2012-02-28

Can a New York lawyer be listed in a bar association's online member directory and appear as a 'featured attorney' on its website?

Short answer: Yes. A member may be listed in the association's online directory if the listing complies with Rule 7.1, and may appear as a randomly selected 'featured attorney' only if the page carries a disclaimer that the feature is by lot and is not an endorsement or recommendation.

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 Not binding precedent.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 908: Advertising in an Internet Directory

Short answer: A lawyer may be listed in a local bar association's online member directory if the listing complies with Rule 7.1, and may appear in a randomly rotating "featured attorney" spotlight only if the page carries a disclaimer that the feature is chosen by lot and is not an endorsement or recommendation.

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

A local bar association proposed an online directory listing each dues-paying member's name, contact information, website link, years and areas of practice, photo, and a maps link, gated behind a disclaimer that legal advice is not being given and that the listing is alphabetical and not an endorsement. The association also proposed a weekly "Featured Attorney" spotlight, chosen at random so that over time every member is featured, with an asterisked disclaimer. A member asked whether it could permit being listed and being featured (paragraphs 1 through 4).

The committee held the directory listing is an "advertisement" under Rule 1.0(a) because it is a public communication whose primary purpose is the retention of the lawyer. Rule 7.1(f) excludes advertising in a directory from the "Attorney Advertising" labeling requirement, so a directory listing is permissible advertising that must comply with Rule 7.1 but need not carry that label. Because the listing is not directed at a specific recipient, it is not a solicitation under Rule 7.3, and because the association does not steer the public to any particular attorney, the listing is not a referral for payment under Rule 7.2 (paragraphs 5 through 8).

The committee treated the featured-attorney spotlight differently. Because the spotlight does not appear in a directory, it must be labeled "Attorney Advertising" under Rule 7.1(f) and must otherwise comply with Rule 7.1. To remove Rule 7.2 concerns, the disclaimer must state that the association is not endorsing or recommending the featured attorney over any other and that the attorney is drawn by lot and changes weekly so that each member can be displayed (paragraph 9).

In practice

The opinion holds that, under the New York rules as they stood at the time, a member may participate in a bar association's online directory and featured-attorney spotlight. The committee made the directory listing permissible advertising under Rule 7.1, exempt from the "Attorney Advertising" label by Rule 7.1(f), and outside Rule 7.3 (not a solicitation) and Rule 7.2 (not a paid referral). For the spotlight, the committee required the "Attorney Advertising" label plus a disclaimer that the selection is random and is neither an endorsement nor a recommendation, which is what keeps it clear of Rule 7.2.

Common questions

Q: Is a listing in a bar association's online directory considered lawyer advertising?

A: Yes. The committee held the listing is an advertisement under Rule 1.0(a) because its primary purpose is the retention of the lawyer, so it must comply with Rule 7.1 (paragraphs 5, 6).

Q: Does a directory listing have to be labeled "Attorney Advertising"?

A: No. Rule 7.1(f) excludes advertising in a directory from the labeling requirement, so the listing must satisfy Rule 7.1 but need not carry the "Attorney Advertising" label (paragraph 7).

Q: Can I appear as a randomly chosen "featured attorney" on the association's home page?

A: Yes, with conditions. Because the spotlight is not part of a directory, it must be labeled "Attorney Advertising" and carry a disclaimer that the feature is drawn by lot, rotates weekly, and is not an endorsement or recommendation, which removes Rule 7.2 concerns (paragraph 9).

Background and rules framework

The opinion interprets the definition of "advertisement" in New York Rule 1.0(a) and applies Rule 7.1 (advertising, including the Rule 7.1(f) directory exemption from the "Attorney Advertising" label), Rule 7.2 (payment for referrals), and Rule 7.3 (solicitation), corresponding to ABA Model Rules 7.1, 7.2, and 7.3. The analysis turns on whether the communication is a directory listing (exempt from labeling, not a referral) or a separate spotlight (advertising that must be labeled and disclaimed).

Citations and references

Rules of Professional Conduct:

NY Rule 1.0(a): definition of "advertisement"
MR 7.1 / NY Rule 7.1: lawyer advertising; Rule 7.1(f) directory exemption from the "Attorney Advertising" label
MR 7.2 / NY Rule 7.2: payment for recommending the lawyer's services
MR 7.3 / NY Rule 7.3: solicitation directed to a specific recipient

Source

Landing page: https://nysba.org/ethics-opinion-908/