Can a law firm sell paid subscriptions to nonclients for its monthly legal-developments newsletter, rather than just distributing it free to clients?

Plain-English summary

A law firm already distributed a free monthly publication to its clients, containing articles by firm attorneys on recent legal developments and legislative action in particular practice areas, written to educate laypersons about potential legal problems and current developments. The publication carried no biographical data about the firm or its lawyers, did not attempt to solve individual problems, and included an express disclaimer to that effect. The firm proposed to sell annual subscriptions to non-clients by circulating an explanatory brochure that did not advertise the availability of legal services or mention specific practice areas, distributed to laypersons in the business community by direct mail or through a separate publications corporation that would handle the brochure, distribution, and sales, with delivery handled by non-attorneys.

The opinion applied Ethical Consideration 2-5, which cautions a lawyer writing or speaking to educate the public to avoid giving or appearing to give a general solution applicable to all apparently similar problems, since small factual differences can require materially different advice, and to caution readers not to try to solve individual problems based solely on the published information. It applied Disciplinary Rule 2-104(A)(4), which permits a lawyer to speak or write publicly on legal topics, without affecting the lawyer's right to accept employment, so long as the lawyer does not emphasize personal professional experience or reputation and does not undertake to give individual advice. The opinion also identified Disciplinary Rules 2-101(C), 2-101(M), and 2-102(A), the same publicity rules cited in Formal Ethics Opinion 83-F-49, and quoted the Committee's statement in 83-F-49(a) that the intent of recent decisions and rule changes is to foster informed decision-making by potential consumers of legal services while safeguarding privacy and protecting against lawyer overreaching. The opinion concluded there is no impropriety in selling subscriptions to the publication as described, or in circulating the explanatory brochure, provided the firm complies with the Canon 2 Disciplinary Rules on publicity.

Currency note

This opinion was issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a law firm charge non-clients for a subscription to its legal-developments newsletter?

A: Yes. The opinion found no impropriety in selling subscriptions to non-clients, provided the publication does not include firm biographical data and does not attempt to resolve individual legal problems.

Q: Can the firm advertise the newsletter subscriptions with a mailed brochure?

A: Yes, the opinion permitted circulating a brochure describing the publication and offering subscriptions, so long as the brochure does not advertise the availability of legal services or mention specific practice areas, and the firm complies with the Canon 2 publicity rules.

Q: What must the publication itself avoid to stay within the educational, non-advice purpose the opinion approved?

A: Under EC 2-5 and DR 2-104(A)(4), the publication must not give or appear to give a general solution to individual problems, must not emphasize the writing lawyer's own professional experience or reputation, and must not undertake to give individual advice.

Background and rules framework

The opinion applied Ethical Consideration 2-5 and Disciplinary Rules 2-104(A)(4), 2-101(C), 2-101(M), and 2-102(A) of the Code of Professional Responsibility, the publicity provisions of Canon 2 also construed in the Board's brochure opinions, Formal Ethics Opinion 83-F-49 and 83-F-49(a). The modern correlates are Model Rule 7.1 (communications concerning a lawyer's services) and Model Rule 7.2 (advertising), cited here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Other opinions cited:

• Tennessee Formal Ethics Opinion 83-F-49, law firm brochure content requirements
• Tennessee Formal Ethics Opinion 83-F-49(a), law firm brochure delivery and distribution

See also

• NYSBA Op. 947: Purchase of Mailing List Names to Offer an Email Educational Newsletter
• Tenn. Ethics Op. 85-F-95: Law Firm Brochures (same Canon 2 publicity framework and 83-F-49 predecessors)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-87

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

85-F-87 - Law Firm selling subscriptions to publication

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-87

Inquiry is made concerning the propriety of a law firm selling to nonclients subscriptions to a monthly publication designed to provide information to laypersons of current developments in various areas of the law.

The law firm currently distributes a monthly publication to its clients at no charge. The publication contains articles written by attorneys of the law firm reporting recent legal developments and legislative action in certain areas of the law.

The publication is prepared for the purpose of educating the layperson to recognize potential legal problems and to inform them as to various developments in the law. The publication contains no biographical data on the firm or its attorneys. The publication does not attempt to offer solutions to individual problems and contains an express disclaimer to this effect.

The law firm proposes to sell subscriptions to their publications to non-clients by circulating a brochure explaining the publications and offering annual subscriptions. The brochure does not advertise the availability of legal services nor mention specific areas of legal practice. The brochures will be distributed to laypersons in the business community via direct mail or by forming a separate publications corporation to handle the advertising brochure, distribution and selling of the publication. The actual delivery of the brochure and the publication will not be handled by attorneys of the law firm.

Ethical Consideration 2-5 of the Code of Professional Responsibility which is aspirational and states objectives toward which lawyers should strive states:

EC 2-5. A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writing by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein.

Disciplinary Rule 2-104(A)(4) of the Code which is mandatory and states a minimum level of conduct expected of the lawyer states:

DR 2-104(A)(4). Without affecting his rights to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice.

Other Disciplinary Rules material to this inquiry are 2-101(C), 2-101(M) and 2-102(A) which are cited in Formal Ethics Opinion 83-F-49. The Ethics Committee in Formal Ethics Opinions 83-F-49(a) stated:

The intent and thrust of the recent decisions and rule changes are to foster informed decision making by potential consumers of legal services while safeguarding privacy and protecting against overreaching by lawyers.

There is no impropriety in a law firm selling subscriptions to a monthly publication to non-clients, as described herein, and which is designed to provide information to laypersons of current developments in various areas of the law; and, there is no impropriety in circulating a brochure explaining the publications and offering annual subscriptions as proposed herein, provided there is compliance with the Disciplinary Rules contained in Canon 2 of the Code of Professional Responsibility relating to publicity.

This 16th day of January, 1985.

ETHICS COMMITTEE:

C. T. Herndon, III

T. Maxfield Bahner

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD