Can a New York law firm's website link to the website of a nonlegal consulting business the firm formed, and vice versa?

Plain-English summary

A member of a law firm that had formed a separate nonlegal consulting entity asked whether the two websites could link to each other (paragraphs 1, 2). The committee answered yes, with conditions.

As a general matter, a lawyer may link the firm's website to a third party's site and vice versa. But Rule 1.0(a) defines "advertisement" broadly to include any communication about the firm's services whose primary purpose is the firm's retention, and Rule 1.0(c) treats weblinks as a form of "computer-accessed communication." So if a particular link's primary purpose is to facilitate retention of the firm, the link and its related text are advertisements (paragraph 3). Advertisements are subject to Rule 7.1, including the bar on false or misleading content and rules such as pre-approval and retention; if both links are advertisements, both home pages must be labeled "Attorney Advertising" under Rule 7.1(f), and Rule 8.4(a) bars violating the rules through another (paragraph 4).

If a link's primary purpose is not retention, for example a link providing biographical information about the entity's constituents or access to a document on the firm's site, it is not an advertisement (paragraph 5). The committee then turned to Rule 5.7 on nonlegal services. Because the lawyer owns or controls the nonlegal entity, the relevant provision is Rule 5.7(a)(3), and Rule 5.7(a)(4) presumes a recipient of the nonlegal services believes them to be the subject of a client-lawyer relationship. The committee reasoned that in the advertising context, where the recipient is unknown, effective notice to overcome that presumption cannot be given, so the advertising rules will apply (paragraph 6). If any subdivision of Rule 5.7 applies, the Rules, including those on advertising, govern the nonlegal entity's website (paragraph 7, citing N.Y. State 832).

In practice

The opinion holds that reciprocal links between a firm's site and a firm-formed nonlegal entity's site are permissible, but it makes the regulatory consequence turn on each link's primary purpose and on Rule 5.7. Where a link's primary purpose is to facilitate retention of the firm, it is an advertisement subject to Rule 7.1 (including the "Attorney Advertising" label requirement), and where the lawyer owns or controls the nonlegal entity, Rule 5.7(a)(3) and the (a)(4) presumption can bring the advertising rules to bear on the nonlegal entity's website as well.

Common questions

Q: Can my law firm's website link to my firm's separate consulting company, and vice versa?

A: Yes. The committee held both reciprocal links are ethically permissible, subject to the advertising rules where the links qualify as advertisements (paragraphs 3, 8).

Q: When does a link count as an "advertisement"?

A: When its primary purpose is to facilitate retention of the lawyer or law firm. Rule 1.0(a) defines advertisement by primary purpose, and Rule 1.0(c) treats weblinks as covered communications; a link made primarily to provide biographical information or document access is not an advertisement (paragraphs 3, 5).

Q: If the links are advertisements, what do I have to do?

A: Comply with Rule 7.1, including its bar on false or misleading content and requirements such as pre-approval and retention, and label both home pages "Attorney Advertising" under Rule 7.1(f). Rule 8.4(a) bars violating the rules through another (paragraph 4).

Q: Does Rule 5.7 affect the nonlegal entity's website?

A: It can. Because the lawyer owns or controls the entity, Rule 5.7(a)(3) applies and Rule 5.7(a)(4) presumes recipients believe the nonlegal services are part of a client-lawyer relationship. The committee concluded the advertising rules apply to the nonlegal entity's site because effective notice cannot be given to unknown recipients in the advertising context (paragraphs 6, 7).

Background and rules framework

The opinion interprets New York Rule 1.0(a) (definition of "advertisement"), Rule 1.0(c) ("computer-accessed communication," including weblinks), Rule 7.1 (advertising, including the Rule 7.1(f) labeling requirement), and Rule 5.7 (responsibilities for nonlegal services, particularly 5.7(a)(3) and (a)(4)). These correspond to ABA Model Rules 7.1 and 5.7. The analysis turns on the primary purpose of each link and on the lawyer's ownership or control of the nonlegal entity.

Citations and references

Rules of Professional Conduct:

• NY Rule 1.0(a), (c): definitions of "advertisement" and "computer-accessed communication"
• MR 7.1 / NY Rule 7.1, 7.1(f): advertising and the "Attorney Advertising" label
• MR 5.7 / NY Rule 5.7(a)(3), (a)(4): responsibilities for nonlegal services and the client-relationship presumption
• NY Rule 8.4(a): violating the Rules through the acts of another

Other opinions cited:

• N.Y. State 832 (2009): application of the Rules to a lawyer-affiliated nonlegal entity

See also

• NY State Bar Ethics Op. 1101: Linking a Law Website to a Real Estate Brokerage
• NY State Bar Ethics Op. 938: Firm-Owned Nonlegal Business Buying Marketing Leads
• NY State Bar Ethics Op. 957: Legal Services Through a Nonprofit Agency

Source

• Landing page: https://nysba.org/ethics-opinion-915/
• Original PDF: http://old.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions901975/EO_915.pdf