Can a New York lawyer post an educational legal video online and hand out flyers inviting the public to watch it?

Plain-English summary

A private practitioner wanted to produce and post an internet video teaching laypeople what to do if sued in a collection matter. The video would be general, not case-specific, would include her name and firm contact information at the end, but would not urge viewers to contact her. She also wanted to hand out flyers inviting the public to watch (paragraph 1).

The committee began from the principle that lawyers may participate in, and even are encouraged to provide, legal education for non-lawyers, citing N.Y. State 830 and 508 and Rule 7.1 Comment [9] (paragraph 3). It then walked through the definitions: an "advertisement" under Rule 1.0(a) is a communication about a lawyer's services whose primary purpose is the lawyer's retention. Comment [9] explains that a lawyer's educational program is ordinarily not advertising because its primary purpose is to educate, but it can become advertising if participants are expressly encouraged to hire the lawyer (paragraphs 4, 5).

Applying that test, the committee concluded the proposed video is a form of legal education whose primary purpose is to inform rather than attract clients, and that the format (an internet video) does not change the analysis, comparing it to blogs and citing ABA 10-457 (paragraphs 7, 8). Including firm contact information at the end is a reasonable way to identify the source and does not by itself turn the video into an advertisement (paragraph 8). The same analysis applies to the flyers: if they merely publicize a non-advertising video, they too are educational; if they add reasons to hire the lawyer, they become advertising (paragraph 10).

If the video or flyers cross into advertising by giving reasons to hire the lawyer, then the solicitation rules apply, and the flyers generally could not be handed out in person under Rule 7.3(a)(1) (paragraph 11). The committee also noted that all lawyer communications remain subject to the general bar on dishonesty and material misstatements (paragraph 12), and that it was not opining on Judiciary Law section 479 (footnote 2).

In practice

Under this opinion, a bona fide educational legal video and flyers that merely invite people to watch it are not advertising or solicitation, so the special advertising rules and the in-person solicitation bar do not apply. The opinion makes the line turn on primary purpose: adding statements or suggestions that viewers should hire the lawyer converts the materials into advertising, and if the flyers themselves push retention they must comply with the solicitation rules, including Rule 7.3(a)(1)'s limits on in-person distribution.

Common questions

Q: Can I post a free legal-education video online with my firm's name on it?

A: Yes, under this opinion, if the video is a bona fide educational presentation. The committee said its primary purpose is deemed to be educating the public, and including firm contact information at the end does not, by itself, make it an advertisement (paragraphs 8, 13).

Q: Can I hand out flyers inviting people to watch the video?

A: Yes, if the flyers merely publicize a non-advertising video. If they go further and give reasons to hire you, they become advertising and the solicitation rules apply, which generally bar in-person distribution under Rule 7.3(a)(1) (paragraphs 10, 11).

Q: When does the video become an advertisement?

A: When it goes beyond education to include statements or suggestions that viewers should retain the lawyer. At that point its primary purpose may be deemed attracting clients, and Rule 7.1 and the other advertising provisions apply (paragraph 9).

Background and rules framework

The opinion interprets New York Rule 1.0(a) (definition of "advertisement"), Rule 7.1 (advertising), and Rule 7.3 (solicitation, including Rule 7.3(a)(1)'s bar on in-person and real-time solicitation). These correspond to ABA Model Rules 7.1 and 7.3. The controlling concept is the "primary purpose" test in Rule 1.0(a) and Comment [9] to Rule 7.1, which distinguishes education from client-getting.

Citations and references

Rules of Professional Conduct:

• NY Rule 1.0(a): definition of "advertisement"
• MR 7.1 / NY Rule 7.1: advertising; Comment [9] on educational programs
• MR 7.3 / NY Rule 7.3(a)(1): bar on in-person, telephone, and real-time solicitation

Other opinions cited:

• N.Y. State 508 (1979): law firm may organize and promote a non-lawyer legal seminar by mail
• N.Y. State 830 (2009): lawyer may offer availability as a public speaker on legal topics
• ABA Formal Op. 10-457: lawyer websites assisting the public in understanding the law

See also

• NY State Bar Ethics Op. 947: Buying a Mailing List to Offer an Educational Newsletter
• NY State Bar Ethics Op. 921: Attorney Advertising ("Stop Your Foreclosure")
• NY State Bar Ethics Op. 1039: Blog Opt-In Box as Advertising or Solicitation

Source

• Landing page: https://nysba.org/ethics-opinion-918/