Can a lawyer sell a flat-fee online letter-writing service, advertising that the letters are written by an attorney, without it being treated as legal services?
NY State Bar Ethics Opinion 951: Online letter-writing service by a lawyer
Short answer: A lawyer may offer a flat-fee online letter-writing service only if it is clear that the subject matter of the letters does not implicate legal rights, no legal services are rendered, and the lawyer prominently disclaims any client-lawyer relationship on the website. Because the lawyer identifies himself as an attorney, the analysis is fact-specific and the Rule 5.7(a)(4) disclaimer safe harbor may not be effective for letters with legal effect.
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.
Plain-English summary
A lawyer proposed an online service drafting letters for a flat fee across many categories (condolence, thank-you, demand, letter of intent, resignation, cover, and more), delivered by email for the client to sign and mail, with a website disclaimer that he gives no legal advice, forms no attorney-client relationship, and is hired only for writing skill. He asked whether he may run the service and advertise that the letters are attorney-written.
The committee analyzes Rule 5.7, which defines "nonlegal services" as those a nonlawyer could lawfully provide. Many of the letters (condolence, sympathy, thank-you) are plainly nonlegal, but others can carry legal consequences: a demand letter may declare a contract default, a letter of intent may create obligations, a resignation may need particular form to be effective. Whether a given letter is a nonlegal service requires examining each request.
The complication is that the lawyer holds himself out as an attorney. Under Rule 5.7(a), the conduct rules apply if the nonlegal services are not distinct from legal services, and even if distinct, if the recipient could reasonably believe a client-lawyer relationship exists. Rule 5.7(a)(4) presumes the recipient believes that unless the lawyer has advised in writing that the services are not legal services and lack client-lawyer protection. The committee cites N.Y. State 832 (2009) and N.Y. State 557 (1984): when a lawyer holds himself out as a lawyer, the risk of confusion is great, and even a Rule 5.7(a)(4) disclaimer "would not be effective if the lawyer actually provided legal advice or other legal services."
The committee concludes the lawyer may offer the service, but identifying himself as an attorney creates a substantial risk of confusion about the legal effect of many letters, great enough that the (a)(4) safe harbor would not protect letters that implicate legal rights. Whether each letter is legal or nonlegal turns on the circumstances of that letter.
In practice
The opinion holds that, under the New York rules as they stood in 2012, a lawyer may sell an online letter-writing service only where the letters do not implicate legal rights, no legal services are rendered, and the website prominently disclaims a client-lawyer relationship. The committee identifies the controlling factor as the per-letter inquiry into whether a letter has legal effect, and warns that because the lawyer advertises attorney authorship, the Rule 5.7(a)(4) written disclaimer does not cure letters that actually involve legal advice or legal consequences.
Common questions
Q: Can a lawyer sell a non-legal letter-writing service to the public?
A: Yes, but narrowly. Per paragraphs 3 and 13, the service is permissible only if the letters do not implicate legal rights, no legal services are rendered, and the site clearly disclaims any client-lawyer relationship.
Q: Does a website disclaimer fully protect the lawyer under Rule 5.7?
A: Not always. Per paragraphs 11 and 12, the Rule 5.7(a)(4) safe harbor is ineffective if the lawyer actually gives legal advice, and the risk of client confusion here is great because the lawyer advertises that an attorney writes the letters.
Q: Which letters are the problem?
A: Those with legal effect, like a demand letter, a letter of intent, or a resignation (paragraphs 3 and 11), as opposed to condolence, sympathy, or thank-you letters, which are nonlegal.
Background and rules framework
The opinion interprets Rule 5.7(a) and (c) (Model Rule 5.7, responsibilities regarding nonlegal services), including the "not distinct" test, the reasonable-belief test, and the written-disclaimer presumption in Rule 5.7(a)(4).
Citations and references
Rules of Professional Conduct:
- MR 5.7 / NY Rule 5.7(a), (c) (nonlegal services; when the conduct rules apply; disclaimer safe harbor)
Other opinions cited:
- N.Y. State 832 (2009): identifying oneself as a lawyer when selling a nonlegal service creates a great risk of perceived attorney-client relationship; a disclaimer fails if legal advice is actually given.
- N.Y. State 557 (1984): services performed by a lawyer who holds out as a lawyer constitute the practice of law.
See also
- NY State Bar Op. 958: Finder's fee for introducing a client to investors
- NY State Bar Op. 976: Law firm arrangement with a nonlegal service provider
- NY State Bar Op. 967: When a lawyer's blog is not an advertisement
Source
- Landing page: https://nysba.org/ethics-opinion-951/