Ezel / Ethics Opinions / NYSBA
NYSBA 2012-11-14

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.
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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 947: Buying a mailing list to offer an educational newsletter

Short answer: A law firm may purchase a list of names and email those recipients an offer to opt in to the firm's educational newsletter and seminars, provided the emails and programs do not solicit use of the firm's legal services.

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 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