Ezel / Ethics Opinions / NYSBA
NYSBA 2013-10-25

Can a lawyer mail a cover letter and an informational brochure to accountants and bankers hoping they will refer clients to the lawyer?

Short answer: Yes, if the advertising rules are met. The mailing is permitted as advertising, but the lawyer may not have the accountants or bankers solicit clients on the lawyer's behalf, and may not give them anything of value (such as free services) in exchange for referrals under Rule 7.2(a).
Currency note: this opinion is from 2013
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 Not binding precedent.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 988: Marketing Brochures to Accountants and Bankers

Short answer: A lawyer may mail a cover letter describing the practice, with a third-party informational brochure carrying the firm's contact information, to nonlawyer professionals such as accountants and bankers in the hope they will refer clients, provided the advertising rules are satisfied; but the lawyer may not have those professionals solicit clients on the lawyer's behalf, and may not give them anything of value (such as free services) in exchange for referrals under Rule 7.2(a).

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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

New York attorneys practicing in estate planning, trusts and estates, and elder law wanted to market themselves by mailing local accountants and bankers a cover letter describing the practice along with purchased national-publisher brochures (a federal tax pocket guide and a personal planning guide) printed with the firm's information. They were not trying to sign up the accountants and bankers as clients; they hoped to gain them as referral sources, and the letter to bankers offered to answer general questions for free.

The opinion concludes the cover letters are advertisements under Rule 1.0(a), governed by Rules 7.1, 7.4, and 7.5, and that if those rules are satisfied, the mailing is permitted. Because a lawyer may enter a nonexclusive reciprocal referral arrangement, simply forwarding letters and brochures to nonlawyer professionals in the hope of eventually gaining clients is permitted by analogy.

Two limits apply. First, under Rule 7.3, a solicitation is an advertisement targeted at specific recipients whose primary purpose is retention and a significant motive is pecuniary gain; Rule 7.3(a) bars in-person solicitation of people who are not close friends, relatives, or current or former clients. Because the lawyers could not personally solicit prospective clients with whom they had no prior relationship, they may not do so through a third party such as an accountant or banker (Rule 8.4(a)). So the lawyers could not ask the accountants or bankers to hand out brochures to their clients and direct those clients to contact the lawyers, though there is no bar on a professional referring a client or handing over a brochure when the professional perceives the client needs legal advice or the client asks. Second, Rule 7.2(a) bars giving anything of value to obtain referrals; to the extent the lawyers offered free question-answering to bankers in exchange for recommendations, that would violate Rule 7.2(a). The opinion also notes Judiciary Law section 479 on soliciting legal business, a question of law beyond the committee's jurisdiction.

In practice

Under this opinion, sending marketing materials to potential referral sources is permitted advertising, but the lawyer cannot turn those sources into solicitation agents or pay them in value for referrals. The opinion holds that, under New York's advertising and solicitation rules as they stood at the time, the line falls between a permitted hope that professionals will refer clients when they perceive a need (or the client asks) and an impermissible arrangement directing the professionals to push the lawyer's services on specific clients or trading something of value for referrals.

Common questions

Q: Can a lawyer mail brochures to accountants and bankers to drum up referrals?

A: Yes. The opinion concludes the mailing is permitted advertising, governed by Rules 7.1, 7.4, and 7.5, if those rules are met; a lawyer may seek referral sources this way.

Q: Can the lawyer ask those professionals to hand the brochures to their clients and tell them to call the lawyer?

A: No. The opinion concludes that because the lawyer could not personally solicit those prospective clients, the lawyer may not do so through a third party (Rule 8.4(a)); but a professional may refer a client or pass along a brochure when the professional perceives a need or the client asks.

Q: Can the lawyer offer the bankers free help in exchange for referrals?

A: No. The opinion concludes that giving something of value, such as free services, in exchange for recommendations violates Rule 7.2(a)'s prohibition on compensating others to obtain employment.

Background and rules framework

The opinion applies New York Rule 1.0(a) (definition of advertisement; cf. Model Rule 1.0), Rule 7.1 (advertising; cf. Model Rule 7.1), Rule 7.3 (solicitation and recommendation of professional employment; cf. Model Rule 7.3), Rule 7.2(a) (no payment for recommendations; cf. Model Rule 7.2), Rules 7.4 and 7.5, and Rule 8.4(a) (no violating the rules through the acts of another; cf. Model Rule 8.4(a)). It cites Judiciary Law section 479 as a related question of law outside the committee's ethics jurisdiction.

Citations and references

Rules of Professional Conduct:

  • New York RPC 1.0(a) (definition of advertisement; cf. Model Rule 1.0)
  • New York RPC 7.1, 7.4, 7.5 (advertising and professional notices; cf. Model Rules 7.1, 7.4, 7.5)
  • New York RPC 7.3 (solicitation; cf. Model Rule 7.3)
  • New York RPC 7.2(a) (no payment for recommendations; cf. Model Rule 7.2)
  • New York RPC 8.4(a) (no violation through the acts of another; cf. Model Rule 8.4(a))

Statutes:

  • New York Judiciary Law section 479 (soliciting legal business)

Other opinions cited:

  • N.Y. State 848 (2010): three-factor test for whether a communication is an advertisement
  • N.Y. State 887 (2011); N.Y. State 885 (2011): a lawyer may not circumvent solicitation rules through a nonlawyer's acts
  • N.Y. State 942 (2012); N.Y. State 741 (2001): "anything of value" for referrals under Rule 7.2(a)

See also

Source