Can a law firm put logo-branded promotional gifts in a hospital's welcome package for all patients?

Plain-English summary

A firm wants to cooperate with a local hospital to put a promotional gift (a calendar, pen, or similar item) branded with the firm's logo into a welcome information package given to all hospital patients. The committee concludes nothing in the rules prevents this.

The committee reasons that such logo-branded items are not "advertising" under Rule 1.0(a), which defines an advertisement as a communication about a lawyer's services whose primary purpose is the retention of the lawyer. It relies on Rule 7.1, Comment [8], which states that branded items like "pencils, legal pads, greeting cards, coffee mugs, T-shirts or the like" carrying the firm name, logo, and contact information are not advertisements if their primary purpose is general brand awareness rather than retention for a particular matter. Because a calendar or pen marked only with the firm's name and contact information serves general brand awareness, advertising-specific requirements (such as the Rule 7.1(h) duty to include the principal office address) do not apply. The committee cautions that if the items carried more, such as slogans or additional information about the firm, the conclusion might change.

The committee then addresses the solicitation concern in Rule 7.3(a)(2)(iv), which bars solicitation where the recipient's age or physical, emotional, or mental state makes it unlikely they can exercise reasonable judgment in retaining a lawyer. It finds a mere branded pen or calendar unlikely to overwhelm even a frail patient's judgment, and adds that a broad distribution to a whole population is not barred merely because it reaches some such persons. Because logo-only gifts are not advertising, they are not solicitation and cannot violate that rule, and distributing them without any accompanying oral pitch is not barred in-person solicitation under Rule 7.3(a)(1) (citing N.Y. State 659 (1994) and 857 (2011)).

In practice

The opinion holds that, under the New York rules as they stood in 2012, a firm may place logo-only branded gifts in a hospital's patient welcome packages, because such items are not advertising. The committee identifies the controlling factor as what the item carries: marked only with the firm's name, logo, and contact information, the primary purpose is brand awareness, so the advertising and solicitation rules do not apply; adding slogans or more detail could change the analysis.

Common questions

Q: Can a law firm hand out branded pens or calendars to attract business?

A: Yes. Per paragraphs 4 and 5, logo-branded items whose primary purpose is general brand awareness are not advertisements under Rule 7.1, Comment [8], so the advertising rules do not apply.

Q: Does giving gifts to hospital patients count as improper solicitation of vulnerable people?

A: No, on these facts. Per paragraphs 6 and 7, a logo-only pen or calendar is unlikely to overwhelm a frail patient's judgment, and because it is not advertising it is not solicitation under Rule 7.3(a)(2)(iv).

Q: Would adding a slogan change the answer?

A: It might. Per paragraph 5, the committee notes that if the item included slogans or more information about the firm, the conclusion that it is not advertising could change.

Background and rules framework

The opinion interprets New York Rule 7.1 (Model Rule 7.1, the definition and regulation of advertising, including Comment [8] on branded items and Rule 7.1(h) on required content) and Rule 7.3(a) (Model Rule 7.3, solicitation, including the bar on solicitation of recipients unable to exercise reasonable judgment and on in-person solicitation). The analysis turns on whether logo-only gifts are "advertisements" at all.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NY Rule 7.1, 7.1(h), Comment [8] (advertising; required content; branded items)
• MR 7.3 / NY Rule 7.3(a)(1), (a)(2)(iv), (b) (in-person solicitation; vulnerable recipients; definition)

Other opinions cited:

• N.Y. State 659 (1994): a firm advertisement in a distributed information package, without discussion, is not in-person solicitation.
• N.Y. State 857 (2011): leaving a name-change announcement without personal contact is not in-person solicitation.

See also

• NY State Bar Op. 947: Buying a mailing list to offer an educational newsletter
• NY State Bar Op. 1016: Advertising by email to internet message boards
• NY State Bar Op. 1005: Misleading superlatives in lawyer advertising

Source

• Landing page: https://nysba.org/ethics-opinion-937/