Can a group of New York lawyer-mediators who are not a firm run joint ads and a shared website and phone line without it being a prohibited paid referral arrangement?
NY State Bar Ethics Opinion 979: Joint advertising by a group of lawyer-mediators
Short answer: A group of lawyer-mediators who are not a law firm may place joint advertisements and run a shared website and phone line, because an arrangement where callers choose their own mediator from listed biographies is group advertising, not a payment for referrals prohibited by Rule 7.2(a).
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
Two lawyers organized a group of lawyer-mediators with varied areas of experience. The group has a name and a website listing each member's name, experience, and detailed biography, and plans to advertise, with members sharing operating costs including advertising. A legal assistant answers a listed phone number but does not recommend specific members; callers are expected to pick a mediator from the website. The inquirer asked whether this is a prohibited referral arrangement under N.Y. State 678 (1996).
The opinion concludes it is not. Rule 7.2(a) bars paying anything of value to recommend or obtain employment, but Comment [1] makes clear it does not bar paying for advertising, including group advertising. The opinion works through two threshold points. First, whether mediation by a lawyer is a legal service subject to Rule 7.2 is contested; N.Y. State 678 presumed lawyer-mediators are practicing law, but other authorities disagree. The opinion declines to revisit N.Y. State 678 because the outcome is the same either way: if Rule 7.2 does not apply, the conduct is not prohibited, and if it does apply, the conduct is still permitted under the rest of the analysis. Second, the group is not a law firm under Rule 1.0(h), so Rule 7.2 is potentially applicable, and joint ads must not imply a firm relationship that does not exist (Rule 7.1(c)(2)).
Applying Rule 7.2(a), the opinion draws on N.Y. State 597 (1989) and N.Y. State 678 (1996), which distinguished impermissible referral services (where a caller phones to be given the name of a lawyer, with discretion in the referral) from permissible group advertising (where the ad meaningfully presents the participating lawyers so the consumer knows whom to contact and there is no discretion in referrals). Here, members are listed by name, experience, and biography in a format designed to let consumers select the right mediator themselves, and callers seeking a referral are directed back to the website rather than given a name. The opinion concludes the members are paying for joint advertising, not for referrals. It notes the inquirer may still need to consider advertising rules, specialization claims, trade names, and payment arrangements (including that a fee-percentage cost-sharing arrangement could implicate Rule 1.5(g) and Rule 5.4(a)), on which it does not opine.
In practice
The opinion holds that, under the New York rules as they stood at the time, a group of lawyer-mediators who are not a firm may run joint advertising and a shared website and phone line where the format lets consumers select their own mediator and no one is given a referral by name with discretion. Per the opinion, that is permitted group advertising under Rule 7.2(a) and Comment [1], not a payment for referrals. The opinion expressly does not resolve whether lawyer-mediation is the practice of law, because the conduct is permissible either way, and it flags but does not decide related questions about advertising, specialization, trade names, and percentage-of-fees cost-sharing (Rules 1.5(g), 5.4(a)).
Common questions
Q: Can lawyer-mediators who are not a firm advertise together and share a website?
A: Yes. The opinion concludes that joint advertising listing each member's name and biography, where callers pick their own mediator, is permitted group advertising rather than a prohibited paid referral.
Q: What separates permitted group advertising from a prohibited referral service?
A: Per the opinion, a referral service is one where a caller phones to be given a lawyer's name with discretion in the referral; permitted group advertising meaningfully presents the participating lawyers so the consumer chooses whom to contact, with no discretion in referrals.
Q: Did the committee decide whether a lawyer-mediator is practicing law?
A: No. The opinion declines to revisit N.Y. State 678 because the conduct is permissible whether or not Rule 7.2 applies.
Q: What other issues should the group watch?
A: The opinion notes, without opining, that advertising rules, specialization claims, trade names, and payment arrangements may apply; a cost-share set as a percentage of fees earned through the group could implicate Rule 1.5(g) and Rule 5.4(a).
Background and rules framework
The opinion interprets New York Rule 7.2(a) (paying for referrals; Comment [1] on group advertising), Rule 2.4 (lawyer serving as third-party neutral, the analog of Model Rule 2.4), and Rule 5.7 (responsibilities regarding nonlegal services, the analog of Model Rule 5.7), along with Rule 1.0(h) (definition of "firm") and Rule 7.1(c)(2) (no false implication of firm association). The referral-versus-advertising line comes from N.Y. State 597 (1989) and N.Y. State 678 (1996).
Citations and references
Rules of Professional Conduct:
- NY Rule 7.2(a) (paying for referrals; Comment [1])
- MR 2.4 / NY Rule 2.4 (lawyer as third-party neutral)
- MR 5.7 / NY Rule 5.7(a) (nonlegal services)
- NY Rule 1.0(h) (definition of "firm"); Rule 7.1(c)(2) (false implication of firm association)
- NY Rule 1.5(g) and Rule 5.4(a) (fee division and fee sharing, flagged but not decided)
Other opinions cited:
- N.Y. State 678 (1996): presumption that lawyer-mediators practice law; referral-service line
- N.Y. State 597 (1989): group advertising vs. lawyer referral service
- N.Y. State 900 (2011): constraints on lawyers serving as third-party neutrals
See also
- NY State Bar Op. 981: referral fee from a home security company
- NY State Bar Op. 999: marital mediator referring couples to a spouse
- NY State Bar Op. 1026: lawyer-mediator's confidentiality duties in a work of fiction
Source
- Landing page: https://nysba.org/ethics-opinion-979/