Ezel / Ethics Opinions / NYSBA
NYSBA November 14, 2012

Can a New York law firm buy a mailing list to offer recipients a free educational newsletter and seminars?

Short answer: Yes. Buying a list to email an opt-in offer for an educational newsletter and seminars is permissible, because educational programs not primarily about the firm are neither advertising nor solicitation, and Rule 7.2 lets a firm pay marketing vendors, so long as there is no solicitation of the firm's legal services.

Apply this to your situation

This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2012
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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Plain-English summary

A law firm proposes to purchase a list of names and email those people an opportunity to "opt in" to the firm's email newsletter, through which they would receive information on current legal topics and invitations to firm seminars. The emails and seminars would contain no solicitation to use the firm's legal services. The committee concludes the plan is ethically permissible.

The committee grounds the result in the comments to Rule 7.1. Attorneys are encouraged to educate people about legal problems and to participate in public-education programs (Rule 7.1, Comments 1 and 9). So long as the information disseminated is not "primarily about the lawyer or law firm" (its cases, personnel, clients, or achievements), an educational program and its elements, such as newsletters and seminars, are not advertising; the committee quotes Comment 9 that a lawyer's participation in an educational program is ordinarily not advertising because its primary purpose is to educate rather than to attract clients (citing N.Y. State 830 (2009)).

From there the committee reasons that because these educational newsletters and seminars are not "advertisements" under Rule 7.1(a), and a solicitation is by definition a subset of advertisements under Rule 7.3(b), offering a subscription is not a solicitation and is not subject to Rule 7.3. On paying for the list itself, the committee finds no rule prohibiting the purchase and points to Comment 1 to Rule 7.2, which lets a lawyer pay for permitted advertising and communications and "compensate employees, agents and vendors who are engaged to provide marketing or client development services."

In practice

The opinion holds that, under the New York rules as they stood in 2012, a firm may buy a mailing list and email an opt-in offer for an educational newsletter and seminars. The committee identifies the controlling factor as whether the communications and programs are educational rather than primarily about the firm and free of any solicitation of the firm's legal services; on those facts the newsletter and seminars are not advertising or solicitation, and the purchase of the list is a permitted marketing-vendor expense under Rule 7.2.

Common questions

Q: Can a law firm pay for a list of names to market a newsletter?

A: Yes. Per paragraph 6, the committee finds no rule barring the purchase, and Comment 1 to Rule 7.2 lets a firm compensate vendors providing marketing or client-development services.

Q: Is an educational newsletter considered lawyer advertising?

A: Not if it is not primarily about the firm. Per paragraphs 3 and 4 (Rule 7.1, Comment 9), educational programs whose primary purpose is to educate rather than attract clients are not advertising.

Q: Do the solicitation rules in Rule 7.3 apply to the opt-in offer?

A: No. Per paragraph 5, a solicitation is a subset of advertisements, so a communication that is not an advertisement is not a solicitation and is not subject to Rule 7.3, as long as there is no solicitation of the firm's legal services.

Background and rules framework

The opinion interprets New York Rule 7.1 (Model Rule 7.1, communications about a lawyer's services, including its comments on educational programs), Rule 7.2 (Model Rule 7.2, payments for advertising and marketing services), and Rule 7.3 (Model Rule 7.3, solicitation). The analysis turns on the threshold question of whether the educational newsletter and seminars are "advertisements" at all; the committee concludes they are not, which removes them from the advertising and solicitation rules.

Citations and references

Rules of Professional Conduct:

  • MR 7.1 / NY Rule 7.1 and Comments 1, 7, 9 (communications about a lawyer's services; educational programs)
  • MR 7.2 / NY Rule 7.2 and Comment 1 (paying for advertising and marketing services)
  • MR 7.3 / NY Rule 7.3(b) (solicitation as a subset of advertisements)

Other opinions cited:

  • N.Y. State 830 (2009): educational programs and materials as communications that are not advertising.

See also

Source

Get today's answer for your situation

You just read a 2012 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.