Is a lawyer's blog that doesn't discuss law an attorney advertisement subject to the advertising retention rules?

Plain-English summary

The inquirer is a New York-licensed attorney and columnist employed by a corporation that promotes work-life balance. In that role she would write a blog titled "The [Name] Esq. Blog" that addresses work-life balance, not legal topics. She asked whether the blog is an advertisement subject to the retention and preservation requirements of the attorney advertising rules (¶¶ 1-2).

The committee works through the definitions. A blog disseminated over the internet is plainly a "computer-accessed communication" under Rule 1.0(c), and Rule 7.1(k) requires retaining advertisements in such communications for a year. But Rule 7.1's restrictions apply only to "advertisements," defined in Rule 1.0(a) as a communication about the lawyer or firm's services "the primary purpose of which is for the retention of the lawyer or law firm" (¶¶ 3-5).

Applying the "primary purpose" test, the committee notes that not all lawyer communications are advertisements: branded items, event sponsorships, and educational newsletters or blogs are generally not advertising where their primary purpose is not retention. It cites N.Y. State 873 (2011) for the point that an ultimate business-development goal does not, by itself, make a communication an advertisement, any more than joining a Chamber of Commerce would (¶ 6). Because the inquirer's blog will not discuss legal matters and she does not appear to intend to solicit clients, it is not an advertisement, even though its title signals the author is a lawyer (¶ 7).

The opinion adds one limit: all lawyer communications, advertising or not, remain subject to the general rule against dishonesty, fraud, deceit, or misrepresentation and against knowingly making a material false statement of fact or law (¶ 8).

In practice

Under this opinion, as the rules stood at the time, the classification of a lawyer's blog turns on Rule 1.0(a)'s "primary purpose" test, not on whether the blog identifies the author as an attorney. The opinion holds that a blog that neither discusses legal topics nor seeks to retain the lawyer is not an advertisement, so Rule 7.1(k)'s retention and preservation requirements do not attach (¶¶ 7, 9).

Per the opinion, the conclusion does not free the content of all rules: Rule 7.1's Comment [6] subjects every lawyer communication to the general prohibition on dishonesty and material false statements (¶ 8). The committee assumed some posts would be "about" the author and decided the case on the retention-purpose element.

Common questions

Q: Is a lawyer's personal blog an attorney advertisement?

A: Not necessarily. The opinion holds a blog is an advertisement only if its primary purpose is the retention of the lawyer under Rule 1.0(a); a blog that does not discuss law or solicit clients is not (¶¶ 5-7).

Q: Does it matter that the blog's title includes "Esq." or otherwise shows the author is a lawyer?

A: No. The opinion concludes the blog is not an advertisement even though its title makes clear the author is an attorney (¶¶ 7, 9).

Q: If the blog is not an advertisement, do the retention rules apply?

A: No. The opinion holds Rule 7.1(k)'s retention and preservation requirements apply only to advertisements, so they do not reach this blog (¶¶ 5, 9).

Q: Are there any rules the blog still has to follow?

A: Yes. Per the opinion, all lawyer communications remain subject to the general bar on dishonesty, fraud, deceit, misrepresentation, and knowingly false material statements (¶ 8).

Background and rules framework

The opinion interprets Rule 1.0(a) (definition of "advertisement") and Rule 1.0(c) (definition of "computer-accessed communication"), both analogous to Model Rule 1.0, together with Rule 7.1(k) (retention of computer-accessed advertisements; Model Rule 7.1). The "primary purpose ... retention" element is the dispositive part of the advertisement definition.

The committee relies on Rule 7.1's Comments [7]-[8] and [10] (educational newsletters/blogs, branding items, and sponsorships are generally not advertising) and on prior opinions treating educational content as non-advertising.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.0 / NY Rule 1.0(a), 1.0(c) (definitions of "advertisement" and "computer-accessed communication")
• Model Rule 7.1 / NY Rule 7.1(k) (retention of computer-accessed advertisements); Rule 7.1, Cmt. [6] (general honesty rule)

Other opinions cited:

• N.Y. State 873 (2011): an ultimate business-development goal does not make a communication an advertisement
• N.Y. State 918 (2012): educational legal video not encouraging retention is not advertising
• N.Y. State 899 (2011): general answers in a legal chat room are not advertising

See also

• NY State Bar Op. 972: Listing under "Specialties" on social media
• NY State Bar Op. 1039: Blog opt-in box as advertising or solicitation
• NY State Bar Op. 1016: Advertising by email to internet message boards

Source

• Landing page: https://nysba.org/ethics-opinion-967/