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New York Bridge the Gap Session C: Best Practices and Ethics for Law Firm Marketing

Tuesday, January 28, 2014 5:30 PM – 9:00 PM I. Please rate each speaker in this session on a scale of 1 - 4

(1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) Presentation Content Written Materials

Russ Korins

Jennifer Shaheen

Natalie Sulimani

Dan Jordan

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This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 4 hours of total CLE credit. Of these, 1.5 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

New York Bridge the gap SeSSioN C: BeSt praCtiCeS aNd ethiCS for Law firm

marketiNgPrepared in connection with a Continuing Legal Education course presented

at New York County Lawyers’ Association, 14 Vesey Street, New York, NY presented on Tuesday, January 28, 2014.

P r o g r A m F A C u L t Y :

Dan Jordan, NYCLA Director of Library Services; Russ Korins, Director of Marketing, Cohen Tauber Spievack & Wagner P.C.; Natalie Sulimani, Sulimani & Nahoum, PC; Jennifer

Shaheen, President & Technology Therapist

4 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 4 Transitional & Non-Transitional credit hours: 1.5 Ethics; 1.5 Skills; 1 PP/LPM

Information Regarding CLE Credits and Certification Bridge the Gap Session C: Best Practices and Ethics for Law Firm Marketing

Tuesday, January 28, 2014 5:30 PM to 9:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Bridge the Gap Session C: Best Practices and Ethics for Law Firm Marketing

Tuesday, January 28, 2014 5:30 PM to 9:00 PM

Faculty: Dan Jordan, NYCLA Director of Library Services

Russ Korins, Director of Marketing, Cohen Tauber Spievack & Wagner P.C. Natalie Sulimani, Sulimani& Nahoum, PC Jennifer Shaheen, President & Technology Therapist

AGENDA

5:00 PM – 5:30 PM Registration 5:30 PM – 7:35 PM Best Practices for Law Firm Marketing Natalie Sulimani Jennifer Shaheen Russ Korins 7:35 PM – 7:45 PM BREAK 7:45 PM - 8:35 PM Legal Research with a Focus on New York Ethics Dan Jordan 8:35 PM – 9: 00 PM Legal Research Questions and Answers Dan Jordan

Best Practices and Ethics for Law Firm Marketing

Tuesday, January 28, 2014

COURSE MATERIALS

Section New York City Bar Association Committee of Professional Ethics 1 Formal Opinion 2010- : Obtaining Evidence from Social Media Websites New York State Bar Association Committee on Professional Ethics 2 Opinion 897: Marketing of Legal Services by Use of “Deal of the Day” or “Group Coupon” Website NYCLA Committee on Professional Ethics Formal Opinion No. 743 3 Lawyer Investigation of Juror Internet and Social Networking Postings During Conduct of Trial New York State Bar Association Committee on Professional Ethics 4 Opinion 972: Listing in Social Media New York State Bar Association Committee on Professional Ethics 5 Opinion 843: Lawyer’s Access to Social Pages of Another Party’s Social Networking Website (Such as Facebook or MySpace) for the purpose of obtaining possible Impeachment material for use in the litigation. New York State Bar Association Committee on Professional Ethics 6 Opinion 873: Offering a prize to join attorney’s social networking sites New York State Bar Association Committee on Professional Ethics 7 Opinion 877: Permissible Information on a Law Firm Website BEFORE YOU SOCIAL MEDIA, DO YOU KNOW THE ETHICS RULES 8

INVOLVED? New York Rules of Professional Conduct Rule 1:18: Duties to Prospective Clients

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

COMMITTEE ON PROFESSIONAL ETHICS

FORMAL OPINION 2010-2

OBTAINING EVIDENCE

FROM SOCIAL NETWORKING WEBSITES

TOPIC: Lawyers obtaining information from social networking websites.

DIGEST: A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.

RULES: 4.1(a), 5.3(c)(1), 8.4(a) & (c)

QUESTION: May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?

OPINION

Lawyers increasingly have turned to social networking sites, such as Facebook, Twitter and YouTube, as potential sources of evidence for use in litigation.1 In light of the information regularly found on these sites, it is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated in whole or part by postings on a Facebook wall.2 Nor is it hard to imagine a copyright infringement case that turns largely on the postings of certain allegedly pirated videos on YouTube. The potential availability of helpful evidence on these internet-based sources makes them an attractive new weapon in a lawyer's arsenal of formal and informal discovery devices.3

The prevalence of these and other social networking websites, and the potential

1 Social networks are internet-based communities that individuals use to communicate with each other

and view and exchange information, including photographs, digital recordings and files. Users create a profile page with personal information that other users may access online. Users may establish the level of privacy they wish to employ and may limit those who view their profile page to “friends” – those who have specifically sent a computerized request to view their profile page which the user has accepted. Examples of currently popular social networks include Facebook, Twitter, MySpace and LinkedIn.

2See, e.g., Stephanie Chen, Divorce attorneys catching cheaters on Facebook, June 1, 2010,

http://www.cnn.com/2010/TECH/social.media/06/01/facebook.divorce.lawyers/index.html?hpt=C2.

3See, e.g., Bass ex rel. Bass v. Miss Porter’s School, No. 3:08cv01807, 2009 WL 3724968, at *1-2 (D.

Conn. Oct. 27, 2009).

benefits of accessing them to obtain evidence, present ethical challenges for attorneys navigating these virtual worlds.

In this opinion, we address the narrow question of whether a lawyer, acting either alone or through an agent such as a private investigator, may resort to trickery via the internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds. In particular, we focus on an attorney's direct or indirect use of affirmatively “deceptive” behavior to "friend" potential witnesses. We do so in light of, among other things, the Court of Appeals’ oft-cited policy in favor of informal discovery. See, e.g., Niesig v. Team I, 76 N.Y.2d 363, 372, 559 N.Y.S.2d 493, 497 (1990) (“[T]he Appellate Division’s blanket rule closes off avenues of informal discovery of information that may serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes.”); Muriel, Siebert & Co. v. Intuit Inc., 8 N.Y.3d 506, 511, 836 N.Y.S.2d 527, 530 (2007) (“the importance of informal discovery underlies our holding here”). It would be inconsistent with this policy to flatly prohibit lawyers from engaging in any and all contact with users of social networking sites. Consistent with the policy, we conclude that an attorney or her agent may use her real name and profile to send a “friend request” to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request.4 While there are ethical boundaries to such “friending,” in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements. See, e.g., id., 8 N.Y.3d at 512, 836 N.Y.S.2d at 530 (“Counsel must still conform to all applicable ethical standards when conducting such [ex parte] interviews [with opposing party’s former employee].” (citations omitted)).

The potential ethical pitfalls associated with social networking sites arise in part from the informality of communications on the web. In that connection, in seeking access to an individual's personal information, it may be easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness’s home, view the witness's photographs and video files, learn the witness’s relationship status, religious views and date of birth, and review the witness’s personal diary, the witness almost certainly would slam the door shut and perhaps even call the police.

In contrast, in the “virtual” world, the same stranger is more likely to be able to gain admission to an individual’s personal webpage and have unfettered access to most, if not all, of the foregoing information. Using publicly-available information, an attorney or her investigator could easily create a false Facebook profile listing schools, hobbies,

4 The communications of a lawyer and her agents with parties known to be represented by counsel are

governed by Rule 4.2, which prohibits such communications unless the prior consent of the party’s lawyer is obtained or the conduct is authorized by law. N.Y. Prof’l Conduct R. 4.2. The term “party” is generally interpreted broadly to include “represented witnesses, potential witnesses and others with an interest or right at stake, although they are not nominal parties.” N.Y. State 735 (2001). Cf. N.Y. State 843 (2010)(lawyers may access public pages of social networking websites maintained by any person, including represented parties).

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interests, or other background information likely to be of interest to a targeted witness. After creating the profile, the attorney or investigator could use it to make a “friend request” falsely portraying the attorney or investigator as the witness's long lost classmate, prospective employer, or friend of a friend. Many casual social network users might accept such a “friend request” or even one less tailored to the background and interests of the witness. Similarly, an investigator could e-mail a YouTube account holder, falsely touting a recent digital posting of potential interest as a hook to ask to subscribe to the account holder’s “channel” and view all of her digital postings. By making the “friend request” or a request for access to a YouTube “channel,” the investigator could obtain instant access to everything the user has posted and will post in the future. In each of these instances, the “virtual” inquiries likely have a much greater chance of success than if the attorney or investigator made them in person and faced the prospect of follow-up questions regarding her identity and intentions. The protocol on-line, however, is more limited both in substance and in practice. Despite the common sense admonition not to “open the door” to strangers, social networking users often do just that with a click of the mouse.

Under the New York Rules of Professional Conduct (the “Rules”), an attorney and those in her employ are prohibited from engaging in this type of conduct. The applicable restrictions are found in Rules 4.1 and 8.4(c). The latter provides that “[a] lawyer or law firm shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” N.Y. Prof’l Conduct R. 8.4(c) (2010). And Rule 4.1 states that “[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” Id. 4.1. We believe these Rules are violated whenever an attorney “friends” an individual under false pretenses to obtain evidence from a social networking website.

For purposes of this analysis, it does not matter whether the lawyer employs an agent, such as an investigator, to engage in the ruse. As provided by Rule 8.4(a), “[a] lawyer or law firm shall not . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Id.8.4(a). Consequently, absent some exception to the Rules, a lawyer’s investigator or other agent also may not use deception to obtain information from the user of a social networking website. See id. Rule 5.3(b)(1) (“A lawyer shall be responsible for conduct of a nonlawyer employed or retained by or associated with the lawyer that would be a violation of these Rules if engaged in by a lawyer, if . . . the lawyer orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it . . . .”).

We are aware of ethics opinions that find that deception may be permissible in rare instances when it appears that no other option is available to obtain key evidence. SeeN.Y. County 737 (2007) (requiring, for use of dissemblance, that “the evidence sought is not reasonably and readily obtainable through other lawful means”); see also ABCNY Formal Op. 2003-02 (justifying limited use of undisclosed taping of telephone conversations to achieve a greater societal good where evidence would not otherwise be available if lawyer disclosed taping). Whatever the utility and ethical grounding of these limited exceptions -- a question we do not address here -- they are, at least in

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most situations, inapplicable to social networking websites. Because non-deceptive means of communication ordinarily are available to obtain information on a social networking page -- through ordinary discovery of the targeted individual or of the social networking sites themselves -- trickery cannot be justified as a necessary last resort.5

For this reason we conclude that lawyers may not use or cause others to use deception in this context.

Rather than engage in “trickery,” lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful “friending” of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line.6

Accordingly, a lawyer may not use deception to access information from a social networking webpage. Rather, a lawyer should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence.

September 2010

5 Although a question of law beyond the scope of our reach, the Stored Communications Act, 18 U.S.C. §

2701(a)(1) et seq. and the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq., among others, raise questions as to whether certain information is discoverable directly from third-party service providers such as Facebook. Counsel, of course, must ensure that her contemplated discovery comports with applicable law.

6 While we recognize the importance of informal discovery, we believe a lawyer or her agent crosses an

ethical line when she falsely identifies herself in a “friend request”. See, e.g., Niesig v. Team I, 76 N.Y.2d 363, 376, 559 N.Y.S.2d 493, 499 (1990) (permitting ex parte communications with certain employees); Muriel Siebert, 8 N.Y.3d at 511, 836 N.Y.S.2d at 530 (“[T]he importance of informal discovery underlie[s] our holding here that, so long as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee.”).

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379003.1

NYCLA COMMITTEE ON PROFESSIONAL ETHICS

FORMAL OPINION

No.: 743

Date Issued: May 18, 2011

TOPIC: Lawyer investigation of juror internet and social networking postings during conduct of

trial.

DIGEST:

It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective

juror's social networking site, provided that there is no contact or communication with the

prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter

accounts, send tweets to jurors or otherwise contact them. During the evidentiary or deliberation

phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social

networking site of a juror, but must not "friend," email, send tweets to jurors or otherwise

communicate in any way with the juror, or act in any way by which the juror becomes aware of

the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit,

directly or indirectly, in reviewing juror social networking sites. In the event the lawyer learns of

juror misconduct, including deliberations that violate the court's instructions, the lawyer may not

unilaterally act upon such knowledge to benefit the lawyer's client, but must promptly comply

with Rule 3.5(d) and bring such misconduct to the attention of the court before engaging in any

further significant activity in the case.

RULES:

RPC 3.5, 4.1, 8.4

QUESTION:

After voir dire is completed and the trial commences, may a lawyer routinely conduct ongoing

research on a juror on Twitter, Facebook and other social networking sites? If so, what are the

lawyer's duties to the court under Rule of Professional Conduct 3.5?

OPINION:

This opinion considers lawyer investigations of jurors during an ongoing trial. With the advent

of internet-based social networking services, additional complexities are introduced to the

traditional rules barring contact between lawyers and jurors during trials.

New York RPC 3.5(a)(4) and (a)(5) provide that a lawyer shall not:

379003.1

4. communicate or cause another to communicate with a member of the jury venire from

which the jury will be selected for the trial of a case, or, during the trial of a case with any

member of the jury unless authorized to do so by law or court order;

5. communicate with a juror or prospective juror after discharge of the jury if (i) the

communication is prohibited by law or court order; (ii) the juror has made known to the

lawyer a desire not to communicate; (iii) the communication involves misrepresentation,

coercion, duress or harassment; or (iv) the communication is an attempt to influence the

juror's actions in future jury service . . . .

Thus, the rules proscribe any direct or indirect communication with a juror or potential juror

during trial, and prohibit certain categories of communication after the jury service is complete.

It should also be noted that the RPC prevent a lawyer from doing indirectly, such as through a

proxy, that which is directly proscribed for the lawyer. (RPC 8.4(a); 3.5).

A. Impermissible Communication

The RPC explicitly draw a distinction between conduct during trial, which is governed by RPC

3.5(a)(4), and conduct after discharge of the jury, which is regulated less strictly under RPC

3.5(a)(5). In fact, a lawyer's contact with jurors is divided, at least in practice, into three distinct

areas. These are voir dire or jury selection, actual conduct of the trial, and post-verdict contact

with jurors. As mentioned, any contact, direct or indirect, is proscribed as a matter of attorney

ethics during the conduct of the trial, but permitted with certain conditions after discharge

pursuant to RPC 3.5(a)(5).

Some authorities have examined a lawyer's use of internet resources to investigate potential

jurors in the voir dire stage. For example, one recent Missouri decision considered and set aside

a jury verdict in which a juror had specifically denied (falsely) any prior jury service. See

Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010). In holding that the juror had acted

improperly, the Court observed that a more thorough investigation of the juror's background

would have obviated the need to set aside the jury verdict and conduct a retrial. The trial court

chided the attorney for failing to perform internet research on the juror, and granted a new trial,

observing that a party should use reasonable efforts to examine the litigation history of potential

jurors. 306 S.W. 3d at 559. A New Jersey appellate court similarly held that the plaintiff

counsel's use of a laptop computer to google potential jurors was permissible and did not require

judicial intervention for fairness concerns. See Carino v. Muenzen, No. A-5491-08T1, N.J.

Super. Unpub. LEXIS 2154, at *26-27 (App. Div. Aug. 30, 2010); see also Jamila A. Johnson,

"Voir Dire: to Google or Not to Google" (ABA Law Trends and News, GP/Solo & Small Firm

Practice Area Newsletter, Fall 2008, Volume 5, No. 1).

In another context, the New York State Bar Association Committee on Professional Ethics, in

Ethics Opinion 843, recently considered whether a lawyer could ethically access the publicly

available social networking page of an unrepresented party or witness for use in litigation,

including possible impeachment. The NYSBA concluded that the lawyer may ethically view and

access the Facebook and MySpace profiles of a party other than the lawyer's client in litigation

as long as the party's profile is available to all members in the network and the lawyer neither

379003.1

"friends" the other party nor directs someone else to do so."1

Drawing an analogy to jurors, we

conclude that passive monitoring of jurors, such as viewing a publicly available blog or

Facebook page, may be permissible.

During a trial, however, lawyers may not communicate with jurors outside the courtroom. Not

only is direct or indirect juror contact during trial proscribed as a matter of attorney ethics, as a

matter of law (which is outside the scope of this committee's jurisdiction), the courts proscribe

any unauthorized contact between lawyers and sitting jurors.

Significant ethical concerns would be raised by sending a "friend request," attempting to connect

via LinkedIn.com, signing up for an RSS feed for a juror's blog or "following" a juror's Twitter

account. We believe that such contact would be impermissible communication with a juror.

Moreover, under some circumstances a juror may become aware of a lawyer's visit to the juror's

website.2

If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites,

the contact may well consist of an impermissible communication, as it might tend to influence

the juror’s conduct with respect to the trial.

B. Reporting Juror Misconduct

Lawyers who learn of impeachment or other useful material about an adverse party, assuming

that they otherwise conform with the rules of the court, have no obligation to come forward

affirmatively to inform the court of their findings. Such lawyers, absent other obligations under

court rules or the RPC, may sit back confidently, waiting to spring their trap at trial.3

On the

other hand, a lawyer who learns of juror impropriety is bound by RPC 3.5 to promptly report

such impropriety to the court. That rule provides that: "A lawyer shall reveal promptly to the

court improper conduct by a member of the venire or a juror, or by another toward a member of

the venire or a juror or a member of his or her family of which the lawyer has knowledge." RPC

3.5(d).

The standard jury charge in a civil or criminal case instructs jurors not to discuss the case with

anyone outside the courtroom, not to conduct any independent investigation, not to view the

scene of the incident through computer programs such as Google Earth, and not to perform any

independent research on the internet. See PJI 1:10, 1:11. According to the New York pattern

jury instruction:

1

See NYSBA Ethics Op. 843,

http://www.nysba.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=

43208 at 2-3

2

For example, as of this writing, Twitter apparently conveys a message to the account holder when a new person

starts to "follow" the account, and the social networking site LinkedIn provides a function that allows a user to see

who has recently viewed the user’s profile. This opinion is intended to apply to whatever technologies now exist or

may be developed that enable the account holder to learn the identity of a visitor.

3

Lawyers should keep in mind that RPC 3.4 provides that a lawyer shall not "disregard or advise the client to

disregard a standing rule of a tribunal. . .."

379003.1

It is important to remember that you may not use any internet services such as Google,

Facebook, Twitter or any others to individually or collectively research topics concerning

the trial, which includes the law, information about any of the issues in contention, the

parties or the lawyers or the court.

Jurors have sometimes ignored instructions. For example, a New York juror googled defense

counsel during trial, and discussed it at a social dinner.4

A prominent television newscaster was

criticized for tweeting on his Twitter account about his own jury service.5

In a recent South

Dakota case, a jury verdict was set aside after a juror performed his own internet research, which

he shared with the other jurors.6

Any lawyer who learns of juror misconduct, such as substantial violations of the court's

instructions, is ethically bound to report such misconduct to the court under RPC 3.5, and the

lawyer would violate RPC 3.5 if he or she learned of such misconduct yet failed to notify the

court. This is so even should the client notify the lawyer that she does not wish the lawyer to

comply with the requirements of RPC 3.5. Of course, the lawyer has no ethical duty to routinely

monitor the web posting or Twitter musings of jurors, but merely to promptly notify the court of

any impropriety of which the lawyer becomes aware.

Further, the lawyer who learns of improper juror deliberations may not use this information to

benefit the lawyer's client in settlement negotiations, or even to inform the lawyer's settlement

negotiations. The lawyer may not research a juror's social networking site, ascertain the status of

improper juror deliberations and then accept a settlement offer based on that information, prior to

notifying the court. Rather, the lawyer must "promptly" notify the court of the impropriety—i.e.,

before taking any further significant action on the case.

CONCLUSION:

It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective

juror's social networking site, provided that there is no contact or communication with the

prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter

accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation

phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social

networking site of a juror but must not "friend" the juror, email, send tweets to the juror or

otherwise communicate in any way with the juror or act in any way by which the juror becomes

aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage

in deceit, directly or indirectly, in reviewing juror social networking sites. In the event the lawyer

learns of juror misconduct, including deliberations that violate the court's instructions, the lawyer

may not unilaterally act upon such knowledge to benefit the lawyer's client, but must promptly

4

People vs. Jamison, 24 Misc. 3d 1238A, 243 N.Y.L.J. 42 (2006).

5

Michael Hoenig, Juror Misconduct on the Internet, N.Y.L.J. October 8, 2009.

6

Russo vs. Takata Corp., 2009 S.D. 83, 2009 S.D. Lexis 155 (Sept. 16, 2009).

379003.1

comply with RPC 3.5(d) and bring such misconduct to the attention of the court, before engaging

in any further significant activity in the case.

New York State Bar AssociationCommittee on Professional Ethics

Opinion 972 (6/26/13)

Topic:     Listing in social media

Digest:   Law firm may not list its services under heading of “Specialties” on a social media site,and lawyer may not do so unless certified as a specialist by an appropriate organization orgovernmental authority.

Rule:      7.4

FACTS

1.      The inquiring lawyer’s firm has created a page on LinkedIn, a professional network socialmedia site.  A firm that lists itself on the site can, in the “About” segment of the listing, include asection labeled “Specialties.”  The firm can put items under that label but cannot change the labelitself.  However, the firm can, in the “About” segment, include other sections entitled “Skills andExpertise,” “Overview,” “Industry,” and “Products & Services.”

QUESTION

2.      When a lawyer or law firm provides certain kinds of legal services, and is listed on a socialmedia site that includes a section labeled “Specialties,” may the lawyer or law firm use that sectionto describe the kinds of services provided?

OPINION

3.      The New York Rules of Professional Conduct allow lawyers and law firms to make statementsabout their areas of practice, but the Rules also limit the wording of such statements:

A lawyer or law firm may publicly identify one or more areas of law in which the lawyer orthe law firm practices, or may state that the practice of the lawyer or law firm is limited to oneor more areas of law, provided that the lawyer or law firm shall not state that the lawyer orlaw firm is a specialist or specializes in a particular field of law, except as provided in Rule7.4(c).

Rule 7.4(a) (emphasis added).  The exception in Rule 7.4(c) allows a lawyer to state the fact ofcertification as a specialist, along with a mandated disclaimer, if the lawyer is certified as aspecialist in a particular area by a private organization approved for that purpose by the AmericanBar Association, or by the authority having jurisdiction over specialization under the laws of anotherstate or territory.[1]

4.      A lawyer or law firm listed on a social media site may, under Rule 7.4(a), identify one or moreareas of law practice.  But to list those areas under a heading of “Specialties” would constitute aclaim that the lawyer or law firm “is a specialist or specializes in a particular field of law” and thus,absent certification as provided in Rule 7.4(c), would violate Rule 7.4(a).  See N.Y. State 559 (1984)(under the Rule’s similar predecessor in Code of Professional Responsibility, it would be improperfor lawyer to be listed in law school alumni directory cross-referenced by “legal specialty”).  We donot in this opinion address whether the lawyer or law firm could, consistent with Rule 7.4(a), listpractice areas under other headings such as “Products & Services” or “Skills and Expertise.”

5.      If a lawyer has been certified as a specialist in a particular area of law or law practice by anorganization or authority as provided in Rule 7.4(c), then the lawyer may so state if the lawyercomplies with that Rule’s disclaimer provisions, which have undergone recent change.[2]  However,Rule 7.4(c) does not provide that a law firm (as opposed to an individual lawyer) may claimrecognition or certification as a specialist, and Rule 7.4(a) would therefore prohibit such a claim by afirm. 

CONCLUSION

6.      A law firm may not list its services under the heading “Specialties” on a social media site.  Alawyer may not list services under that heading unless the lawyer is certified in conformity with theprovisions of Rule 7.4(c).

(22-13)

[1] Also, Rule 7.4(b) allows a lawyer admitted to patent practice before the United States Patent andTrademark Office to use a designation such as “Patent Attorney.”  This opinion does not address theparticular circumstances of such patent attorneys.

[2] In Hayes v. Grievance Comm. of the Eighth Jud. Dist., 672 F. 3d 158 (2d Cir. 2012), the Courtstruck down two parts of the Rule’s required disclaimers.  One part was the language that“certification is not a requirement for the practice of law in the State of New York and does notnecessarily indicate greater competence than other attorneys experienced in this field of law.” Subsequently, by order dated June 25, 2012, the Appellate Divisions deleted that language from therequired disclaimers.  (The other part of the originally required disclaimers – that a certifyingorganization is not affiliated with a governmental authority, or alternatively that certification grantedby another government is not recognized by any New York governmental authority – remains inplace.)  The Hayes court also held that Rule 7.4's requirement that disclaimers be “prominentlymade” was unconstitutionally void for vagueness as applied to the plaintiff.  In a memorandum datedMay 31, 2013, the Unified Court System requested comments from interested persons with respectto defining the term “prominently made.”  A lawyer asserting a specialty risks violation of Rule7.4(c) if the social media site does not satisfy the requirement of “prominently” making the requireddisclaimer.  See Rule 8.4(a) (violation of Rules “through the acts of another”).

the seller and the buyer to each of the seller’s clients

and shall include information regarding:

(1) the client’s right to retain other counsel or to

take possession of the file;

(2) the fact that the client’s consent to the transfer

of the client’s file or matter to the buyer will be

presumed if the client does not take any action

or otherwise object within 90 days of the send-

ing of the notice, subject to any court rule or

statute requiring express approval by the client

or a court;

(3) the fact that agreements between the seller and

the seller’s clients as to fees will be honored by

the buyer;

(4) proposed fee increases, if any, permitted under

paragraph (e); and

(5) the identity and background of the buyer or

buyers, including principal office address, bar

admissions, number of years in practice in New

York State, whether the buyer has ever been dis-

ciplined for professional misconduct or con-

victed of a crime, and whether the buyer

currently intends to resell the practice.

(d) When the buyer’s representation of a client of the

seller would give rise to a waivable conflict of in-

terest, the buyer shall not undertake such represen-

tation unless the necessary waiver or waivers have

been obtained in writing.

(e) The fee charged a client by the buyer shall not be

increased by reason of the sale, unless permitted by

a retainer agreement with the client or otherwise

specifically agreed to by the client.

RULE 1 .18 :

Duties to Prospective Clients

(a) A person who discusses with a lawyer the possibility

of forming a client-lawyer relationship with respect

to a matter is a “prospective client.”

(b) Even when no client-lawyer relationship ensues, a

lawyer who has had discussions with a prospective

client shall not use or reveal information learned in

the consultation, except as Rule 1.9 would permit

with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not repre-

sent a client with interests materially adverse to

those of a prospective client in the same or a sub-

stantially related matter if the lawyer received in-

formation from the prospective client that could be

significantly harmful to that person in the matter,

except as provided in paragraph (d). If a lawyer is

disqualified from representation under this para-

graph, no lawyer in a firm with which that lawyer

is associated may knowingly undertake or continue

representation in such a matter, except as provided

in paragraph (d).

(d) When the lawyer has received disqualifying infor-

mation as defined in paragraph (c), representation

is permissible if:

(1) both the affected client and the prospective

client have given informed consent, confirmed

in writing; or

(2) the lawyer who received the information took

reasonable measures to avoid exposure to more

disqualifying information than was reasonably

necessary to determine whether to represent the

prospective client; and

(i) the firm acts promptly and reasonably to

notify, as appropriate, lawyers and non-

lawyer personnel within the firm that the

personally disqualified lawyer is prohibited

from participating in the representation of

the current client;

(ii) the firm implements effective screening

procedures to prevent the flow of informa-

tion about the matter between the disqual-

ified lawyer and the others in the firm;

(iii) the disqualified lawyer is apportioned no

part of the fee therefrom; and

(iv) written notice is promptly given to the

prospective client; and

(3) a reasonable lawyer would conclude that the

P A R T 1 2 0 0 - R U L E S O F P R O F E S S I O N A L C O N D U C T

1 7

law firm will be able to provide competent and

diligent representation in the matter.

(e) A person who:

(1) communicates information unilaterally to a

lawyer, without any reasonable expectation that

the lawyer is willing to discuss the possibility of

forming a client-lawyer relationship; or

(2) communicates with a lawyer for the purpose of

disqualifying the lawyer from handling a mate-

rially adverse representation on the same or a

substantially related matter, is not a prospective

client with the meaning of paragraph (a).

RULE 2.1 :

Advisor

In representing a client, a lawyer shall exercise inde-

pendent professional judgment and render candid ad-

vice. In rendering advice, a lawyer may refer not only

to law but to other considerations such as moral, eco-

nomic, social, psychological, and political factors that

may be relevant to the client’s situation.

RULE 2.2 :

[Reserved]

RULE 2.3 :

Evaluation for Use by Third Persons

(a) A lawyer may provide an evaluation of a matter af-

fecting a client for the use of someone other than

the client if the lawyer reasonably believes that

making the evaluation is compatible with other as-

pects of the lawyer’s relationship with the client.

(b) When the lawyer knows or reasonably should know

that the evaluation is likely to affect the client’s in-

terests materially and adversely, the lawyer shall not

provide the evaluation unless the client gives in-

formed consent.

(c) Unless disclosure is authorized in connection with

a report of an evaluation, information relating to

the evaluation is protected by Rule 1.6.

RULE 2.4 :

Lawyer Serving as Third-Party Neutral

(a) A lawyer serves as a “third-party neutral” when the

lawyer assists two or more persons who are not

clients of the lawyer to reach a resolution of a dis-

pute or other matter that has arisen between them.

Service as a third-party neutral may include service

as an arbitrator, a mediator or in such other capac-

ity as will enable the lawyer to assist the parties to

resolve the matter.

(b) A lawyer serving as a third-party neutral shall in-

form unrepresented parties that the lawyer is not

representing them. When the lawyer knows or rea-

sonably should know that a party does not under-

stand the lawyer’s role in the matter, the lawyer

shall explain the difference between the lawyer’s

role as a third-party neutral and a lawyer’s role as

one who represents a client.

RULE 3.1 :

Non-Meritorious Claims and

Contentions

(a) A lawyer shall not bring or defend a proceeding, or

assert or controvert an issue therein, unless there is

a basis in law and fact for doing so that is not friv-

olous. A lawyer for the defendant in a criminal pro-

ceeding or for the respondent in a proceeding that

could result in incarceration may nevertheless so

defend the proceeding as to require that every ele-

ment of the case be established.

(b) A lawyer’s conduct is “frivolous” for purposes of

this Rule if:

(1) the lawyer knowingly advances a claim or de-

fense that is unwarranted under existing law,

except that the lawyer may advance such claim

or defense if it can be supported by good faith

argument for an extension, modification, or re-

versal of existing law;

(2) the conduct has no reasonable purpose other

than to delay or prolong the resolution of liti-

gation, in violation of Rule 3.2, or serves merely

N E W Y O R K S T A T E U N I F I E D C O U R T S Y S T E M

1 8

client without expectation by either the lawyer or

the client that the lawyer will provide continuing

representation in the matter:

(1) shall comply with Rules 1.7, 1.8 and 1.9, con-

cerning restrictions on representations where

there are or may be conflicts of interest as that

term is defined in these Rules, only if the lawyer

has actual knowledge at the time of commence-

ment of representation that the representation

of the client involves a conflict of interest; and

(2) shall comply with Rule 1.10 only if the lawyer

has actual knowledge at the time of commence-

ment of representation that another lawyer as-

sociated with the lawyer in a law firm is affected

by Rules 1.7, 1.8 and 1.9.

(b) Except as provided in paragraph (a)(2), Rule 1.7

and Rule 1.9 are inapplicable to a representation

governed by this Rule.

(c) Short-term limited legal services are services pro-

viding legal advice or representation free of charge

as part of a program described in paragraph (a) with

no expectation that the assistance will continue be-

yond what is necessary to complete an initial con-

sultation, representation or court appearance.

(d) The lawyer providing short-term limited legal serv-

ices must secure the client’s informed consent to

the limited scope of the representation, and such

representation shall be subject to the provisions of

Rule 1.6.

(e) This Rule shall not apply where the court before

which the matter is pending determines that a con-

flict of interest exists or, if during the course of the

representation, the lawyer providing the services be-

comes aware of the existence of a conflict of interest

precluding continued representation.

RULE 7.1 :

Advertising

(a) A lawyer or law firm shall not use or disseminate

or participate in the use or dissemination of any ad-

vertisement that:

(1) contains statements or claims that are false, de-

ceptive or misleading; or

(2) violates a Rule.

(b) Subject to the provisions of paragraph (a), an ad-

vertisement may include information as to:

(1) legal and nonlegal education, degrees and other

scholastic distinctions, dates of admission to

any bar; areas of the law in which the lawyer or

law firm practices, as authorized by these Rules;

public offices and teaching positions held; pub-

lications of law related matters authored by the

lawyer; memberships in bar associations or

other professional societies or organizations, in-

cluding offices and committee assignments

therein; foreign language fluency; and bona fide

professional ratings;

(2) names of clients regularly represented, provided

that the client has given prior written consent;

(3) bank references; credit arrangements accepted;

prepaid or group legal services programs in

which the lawyer or law firm participates; non-

legal services provided by the lawyer or law firm

or by an entity owned and controlled by the

lawyer or law firm; the existence of contractual

relationships between the lawyer or law firm

and a nonlegal professional or nonlegal profes-

sional service firm, to the extent permitted by

Rule 5.8, and the nature and extent of services

available through those contractual relation-

ships; and

(4) legal fees for initial consultation; contingent fee

rates in civil matters when accompanied by a

statement disclosing the information required

by paragraph (p); range of fees for legal and

nonlegal services, provided that there be avail-

able to the public free of charge a written state-

ment clearly describing the scope of each

advertised service; hourly rates; and fixed fees

for specified legal and nonlegal services.

(c) An advertisement shall not:

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2 9

(1) include an endorsement of, or testimonial

about, a lawyer or law firm from a client with

respect to a matter still pending;

(2) include a paid endorsement of, or testimonial

about, a lawyer or law firm without disclosing

that the person is being compensated therefor;

(3) include the portrayal of a judge, the portrayal

of a fictitious law firm, the use of a fictitious

name to refer to lawyers not associated together

in a law firm, or otherwise imply that lawyers

are associated in a law firm if that is not the

case;

(4) use actors to portray the lawyer, members of the

law firm, or clients, or utilize depictions of fic-

tionalized events or scenes, without disclosure

of same;

(5) rely on techniques to obtain attention that

demonstrate a clear and intentional lack of rel-

evance to the selection of counsel, including the

portrayal of lawyers exhibiting characteristics

clearly unrelated to legal competence;

(6) be made to resemble legal documents; or

(7) utilize a nickname, moniker, motto or trade

name that implies an ability to obtain results in

a matter.

(d) An advertisement that complies with paragraph (e)

may contain the following:

(1) statements that are reasonably likely to create

an expectation about results the lawyer can

achieve;

(2) statements that compare the lawyer’s services

with the services of other lawyers;

(3) testimonials or endorsements of clients, where

not prohibited by paragraph (c)(1), and of for-

mer clients; or

(4) statements describing or characterizing the

quality of the lawyer’s or law firm’s services.

(e) It is permissible to provide the information set

forth in paragraph (d) provided:

(1) its dissemination does not violate paragraph (a);

(2) it can be factually supported by the lawyer or

law firm as of the date on which the advertise-

ment is published or disseminated; and

(3) it is accompanied by the following disclaimer:

“Prior results do not guarantee a similar out-

come.”

(f ) Every advertisement other than those appearing in

a radio, television or billboard advertisement, in a

directory, newspaper, magazine or other periodical

(and any web sites related thereto), or made in per-

son pursuant to Rule 7.3(a)(1), shall be labeled “At-

torney Advertising” on the first page, or on the

home page in the case of a web site. If the commu-

nication is in the form of a self-mailing brochure

or postcard, the words “Attorney Advertising” shall

appear therein. In the case of electronic mail, the

subject line shall contain the notation “ATTOR-

NEY ADVERTISING.”

(g) A lawyer or law firm shall not utilize:

(1) a pop-up or pop-under advertisement in con-

nection with computer-accessed communica-

tions, other than on the lawyer or law firm’s

own web site or other internet presence; or

(2) meta tags or other hidden computer codes that,

if displayed, would violate these Rules.

(h) All advertisements shall include the name, principal

law office address and telephone number of the

lawyer or law firm whose services are being offered.

(i) Any words or statements required by this Rule to

appear in an advertisement must be clearly legible

and capable of being read by the average person, if

written, and intelligible if spoken aloud. In the

case of a web site, the required words or statements

shall appear on the home page.

(j) A lawyer or law firm advertising any fixed fee for

specified legal services shall, at the time of fee pub-

lication, have available to the public a written state-

ment clearly describing the scope of each advertised

service, which statement shall be available to the

client at the time of retainer for any such service.

Such legal services shall include all those services

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3 0

that are recognized as reasonable and necessary

under local custom in the area of practice in the

community where the services are performed.

(k) All advertisements shall be pre-approved by the

lawyer or law firm, and a copy shall be retained for

a period of not less than three years following its

initial dissemination. Any advertisement contained

in a computer-accessed communication shall be re-

tained for a period of not less than one year. A copy

of the contents of any web site covered by this Rule

shall be preserved upon the initial publication of

the web site, any major web site redesign, or a

meaningful and extensive content change, but in

no event less frequently than once every 90 days.

(l) If a lawyer or law firm advertises a range of fees or

an hourly rate for services, the lawyer or law firm

shall not charge more than the fee advertised for

such services. If a lawyer or law firm advertises a

fixed fee for specified legal services, or performs

services described in a fee schedule, the lawyer or

law firm shall not charge more than the fixed fee

for such stated legal service as set forth in the ad-

vertisement or fee schedule, unless the client agrees

in writing that the services performed or to be per-

formed were not legal services referred to or implied

in the advertisement or in the fee schedule and, fur-

ther, that a different fee arrangement shall apply to

the transaction.

(m) Unless otherwise specified in the advertisement, if

a lawyer publishes any fee information authorized

under this Rule in a publication that is published

more frequently than once per month, the lawyer

shall be bound by any representation made therein

for a period of not less than 30 days after such pub-

lication. If a lawyer publishes any fee information

authorized under this Rule in a publication that is

published once per month or less frequently, the

lawyer shall be bound by any representation made

therein until the publication of the succeeding

issue. If a lawyer publishes any fee information au-

thorized under this Rule in a publication that has

no fixed date for publication of a succeeding issue,

the lawyer shall be bound by any representation

made therein for a reasonable period of time after

publication, but in no event less than 90 days.

(n) Unless otherwise specified, if a lawyer broadcasts

any fee information authorized under this Rule, the

lawyer shall be bound by any representation made

therein for a period of not less than 30 days after

such broadcast.

(o) A lawyer shall not compensate or give any thing of

value to representatives of the press, radio, televi-

sion or other communication medium in anticipa-

tion of or in return for professional publicity in a

news item.

(p) All advertisements that contain information about

the fees charged by the lawyer or law firm, includ-

ing those indicating that in the absence of a recov-

ery no fee will be charged, shall comply with the

provisions of Judiciary Law §488(3).

(q) A lawyer may accept employment that results from

participation in activities designed to educate the

public to recognize legal problems, to make intelli-

gent selection of counsel or to utilize available legal

services.

(r) Without affecting the right to accept employment,

a lawyer may speak publicly or write for publication

on legal topics so long as the lawyer does not un-

dertake to give individual advice.

RULE 7.2 :

Payment for Referrals

(a) A lawyer shall not compensate or give anything of

value to a person or organization to recommend or

obtain employment by a client, or as a reward for

having made a recommendation resulting in em-

ployment by a client, except that:

(1) a lawyer or law firm may refer clients to a non-

legal professional or nonlegal professional serv-

ice firm pursuant to a contractual relationship

with such nonlegal professional or nonlegal

professional service firm to provide legal and

P A R T 1 2 0 0 - R U L E S O F P R O F E S S I O N A L C O N D U C T

3 1

other professional services on a systematic and

continuing basis as permitted by Rule 5.8, pro-

vided however that such referral shall not oth-

erwise include any monetary or other tangible

consideration or reward for such, or the sharing

of legal fees; and

(2) a lawyer may pay the usual and reasonable fees

or dues charged by a qualified legal assistance

organization or referral fees to another lawyer

as permitted by Rule 1.5(g).

(b) A lawyer or the lawyer’s partner or associate or any

other affiliated lawyer may be recommended, em-

ployed or paid by, or may cooperate with one of

the following offices or organizations that promote

the use of the lawyer’s services or those of a partner

or associate or any other affiliated lawyer, or request

one of the following offices or organizations to rec-

ommend or promote the use of the lawyer’s services

or those of the lawyer’s partner or associate, or any

other affiliated lawyer as a private practitioner, if

there is no interference with the exercise of inde-

pendent professional judgment on behalf of the

client:

(1) a legal aid office or public defender office:

(i) operated or sponsored by a duly accredited

law school;

(ii) operated or sponsored by a bona fide,

non-profit community organization;

(iii) operated or sponsored by a governmental

agency; or

(iv) operated, sponsored, or approved by a bar

association;

(2) a military legal assistance office;

(3) a lawyer referral service operated, sponsored or

approved by a bar association or authorized by

law or court rule; or

(4) any bona fide organization that recommends,

furnishes or pays for legal services to its mem-

bers or beneficiaries provided the following

conditions are satisfied:

(i) Neither the lawyer, nor the lawyer’s part-

ner, nor associate, nor any other affiliated

lawyer nor any nonlawyer, shall have ini-

tiated or promoted such organization for

the primary purpose of providing financial

or other benefit to such lawyer, partner, as-

sociate or affiliated lawyer;

(ii) Such organization is not operated for the

purpose of procuring legal work or finan-

cial benefit for any lawyer as a private

practitioner outside of the legal services

program of the organization;

(iii) The member or beneficiary to whom the

legal services are furnished, and not such

organization, is recognized as the client of

the lawyer in the matter;

(iv) The legal service plan of such organization

provides appropriate relief for any member

or beneficiary who asserts a claim that rep-

resentation by counsel furnished, selected

or approved by the organization for the

particular matter involved would be un-

ethical, improper or inadequate under the

circumstances of the matter involved; and

the plan provides an appropriate proce-

dure for seeking such relief;

(v) The lawyer does not know or have cause

to know that such organization is in vio-

lation of applicable laws, rules of court or

other legal requirements that govern its

legal service operations; and

(vi) Such organization has filed with the ap-

propriate disciplinary authority, to the ex-

tent required by such authority, at least

annually a report with respect to its legal

service plan, if any, showing its terms, its

schedule of benefits, its subscription

charges, agreements with counsel and fi-

nancial results of its legal service activities

or, if it has failed to do so, the lawyer does

not know or have cause to know of such

failure.

N EW Y O R K S T A T E U N I F I E D C O U R T S Y S T E M

3 2

RULE 7.3 :

Solicitation and Recommendation of

Professional Employment

(a) A lawyer shall not engage in solicitation:

(1) by in-person or telephone contact, or by real-

time or interactive computer-accessed commu-

nication unless the recipient is a close friend,

relative, former client or existing client; or

(2) by any form of communication if:

(i) the communication or contact violates

Rule 4.5, Rule 7.1(a), or paragraph (e) of

this Rule;

(ii) the recipient has made known to the

lawyer a desire not to be solicited by the

lawyer;

(iii) the solicitation involves coercion, duress

or harassment;

(iv) the lawyer knows or reasonably should

know that the age or the physical, emo-

tional or mental state of the recipient

makes it unlikely that the recipient will be

able to exercise reasonable judgment in re-

taining a lawyer; or

(v) the lawyer intends or expects, but does not

disclose, that the legal services necessary to

handle the matter competently will be per-

formed primarily by another lawyer who

is not affiliated with the soliciting lawyer

as a partner, associate or of counsel.

(b) For purposes of this Rule, “solicitation” means any

advertisement initiated by or on behalf of a lawyer

or law firm that is directed to, or targeted at, a spe-

cific recipient or group of recipients, or their family

members or legal representatives, the primary pur-

pose of which is the retention of the lawyer or law

firm, and a significant motive for which is pecu-

niary gain. It does not include a proposal or other

writing prepared and delivered in response to a spe-

cific request of a prospective client.

(c) A solicitation directed to a recipient in this State

shall be subject to the following provisions:

(1) A copy of the solicitation shall at the time of its

dissemination be filed with the attorney disci-

plinary committee of the judicial district or ju-

dicial department wherein the lawyer or law

firm maintains its principal office. Where no

such office is maintained, the filing shall be

made in the judicial department where the so-

licitation is targeted. A filing shall consist of:

(i) a copy of the solicitation;

(ii) a transcript of the audio portion of any

radio or television solicitation; and

(iii) if the solicitation is in a language other

than English, an accurate English-lan-

guage translation.

(2) Such solicitation shall contain no reference to

the fact of filing.

(3) If a solicitation is directed to a predetermined

recipient, a list containing the names and ad-

dresses of all recipients shall be retained by the

lawyer or law firm for a period of not less than

three years following the last date of its dissem-

ination.

(4) Solicitations filed pursuant to this subdivision

shall be open to public inspection.

(5) The provisions of this paragraph shall not apply

to:

(i) a solicitation directed or disseminated to

a close friend, relative, or former or exist-

ing client;

(ii) a web site maintained by the lawyer or law

firm, unless the web site is designed for

and directed to or targeted at a prospective

client affected by an identifiable actual

event or occurrence or by an identifiable

prospective defendant; or

(iii) professional cards or other announcements

the distribution of which is authorized by

Rule 7.5(a).

(d) A written solicitation shall not be sent by a method

P A R T 1 2 0 0 - R U L E S O F P R O F E S S I O N A L C O N D U C T

3 3

that requires the recipient to travel to a location

other than that at which the recipient ordinarily re-

ceives business or personal mail or that requires a

signature on the part of the recipient.

(e) No solicitation relating to a specific incident in-

volving potential claims for personal injury or

wrongful death shall be disseminated before the

30th day after the date of the incident, unless a fil-

ing must be made within 30 days of the incident

as a legal prerequisite to the particular claim, in

which case no unsolicited communication shall be

made before the 15th day after the date of the in-

cident.

(f ) Any solicitation made in writing or by computer-

accessed communication and directed to a pre-de-

termined recipient, if prompted by a specific

occurrence involving or affecting a recipient, shall

disclose how the lawyer obtained the identity of the

recipient and learned of the recipient’s potential

legal need.

(g) If a retainer agreement is provided with any solici-

tation, the top of each page shall be marked “SAM-

PLE” in red ink in a type size equal to the largest

type size used in the agreement and the words “DO

NOT SIGN” shall appear on the client signature

line.

(h) Any solicitation covered by this section shall in-

clude the name, principal law office address and

telephone number of the lawyer or law firm whose

services are being offered.

(i) The provisions of this Rule shall apply to a lawyer

or members of a law firm not admitted to practice

in this State who shall solicit retention by residents

of this State.

RULE 7.4 :

Identification of Practice and Specialty

(a) A lawyer or law firm may publicly identify one or

more areas of law in which the lawyer or the law

firm practices, or may state that the practice of the

lawyer or law firm is limited to one or more areas

of law, provided that the lawyer or law firm shall

not state that the lawyer or law firm is a specialist

or specializes in a particular field of law, except as

provided in Rule 7.4(c).

(b) A lawyer admitted to engage in patent practice be-

fore the United States Patent and Trademark Office

may use the designation “Patent Attorney” or a

substantially similar designation.

(c) A lawyer may state that the lawyer has been recog-

nized or certified as a specialist only as follows:

(1) A lawyer who is certified as a specialist in a par-

ticular area of law or law practice by a private

organization approved for that purpose by the

American Bar Association may state the fact of

certification if, in conjunction therewith, the

certifying organization is identified and the fol-

lowing statement is prominently made: “The

[name of the private certifying organization] is

not affiliated with any governmental authority.

Certification is not a requirement for the prac-

tice of law in the State of New York and does

not necessarily indicate greater competence

than other attorneys experienced in this field of

law;”

(2) A lawyer who is certified as a specialist in a par-

ticular area of law or law practice by the author-

ity having jurisdiction over specialization under

the laws of another state or territory may state

the fact of certification if, in conjunction there-

with, the certifying state or territory is identi-

fied and the following statement is prominently

made: “Certification granted by the [identify

state or territory] is not recognized by any gov-

ernmental authority within the State of New

York. Certification is not a requirement for the

practice of law in the State of New York and

does not necessarily indicate greater compe-

tence than other attorneys experienced in this

field of law.”

N E W Y O R K S T A T E U N I F I E D C O U R T S Y S T E M

3 4

RULE 7.5:

Professional Notices, Letterheads and

Signs

(a) A lawyer or law firm may use internet web sites,

professional cards, professional announcement

cards, office signs, letterheads or similar profes-

sional notices or devices, provided the same do not

violate any statute or court rule and are in accor-

dance with Rule 7.1, including the following:

(1) a professional card of a lawyer identifying the

lawyer by name and as a lawyer, and giving ad-

dresses, telephone numbers, the name of the

law firm, and any information permitted under

Rule 7.1(b) or Rule 7.4. A professional card of

a law firm may also give the names of members

and associates;

(2) a professional announcement card stating new

or changed associations or addresses, change of

firm name, or similar matters pertaining to the

professional offices of a lawyer or law firm or

any nonlegal business conducted by the lawyer

or law firm pursuant to Rule 5.7. It may state

biographical data, the names of members of the

firm and associates, and the names and dates of

predecessor firms in a continuing line of suc-

cession. It may state the nature of the legal prac-

tice if permitted under Rule 7.4;

(3) a sign in or near the office and in the building

directory identifying the law office and any

nonlegal business conducted by the lawyer or

law firm pursuant to Rule 5.7. The sign may

state the nature of the legal practice if permitted

under Rule 7.4; or

(4) a letterhead identifying the lawyer by name and

as a lawyer, and giving addresses, telephone

numbers, the name of the law firm, associates

and any information permitted under Rule

7.1(b) or Rule 7.4. A letterhead of a law firm

may also give the names of members and asso-

ciates, and names and dates relating to deceased

and retired members. A lawyer or law firm may

be designated “Of Counsel” on a letterhead if

there is a continuing relationship with a lawyer

or law firm, other than as a partner or associate.

A lawyer or law firm may be designated as

“General Counsel” or by similar professional

reference on stationery of a client if the lawyer

or the firm devotes a substantial amount of pro-

fessional time in the representation of that

client. The letterhead of a law firm may give the

names and dates of predecessor firms in a con-

tinuing line of succession.

(b) A lawyer in private practice shall not practice under

a trade name, a name that is misleading as to the

identity of the lawyer or lawyers practicing under

such name, or a firm name containing names other

than those of one or more of the lawyers in the

firm, except that the name of a professional corpo-

ration shall contain “PC” or such symbols permit-

ted by law, the name of a limited liability company

or partnership shall contain “LLC,” “LLP” or such

symbols permitted by law and, if otherwise lawful,

a firm may use as, or continue to include in its

name the name or names of one or more deceased

or retired members of the firm or of a predecessor

firm in a continuing line of succession. Such terms

as “legal clinic,” “legal aid,” “legal service office,”

“legal assistance office,” “defender office” and the

like may be used only by qualified legal assistance

organizations, except that the term “legal clinic”

may be used by any lawyer or law firm provided

the name of a participating lawyer or firm is incor-

porated therein. A lawyer or law firm may not in-

clude the name of a nonlawyer in its firm name,

nor may a lawyer or law firm that has a contractual

relationship with a nonlegal professional or nonle-

gal professional service firm pursuant to Rule 5.8

to provide legal and other professional services on

a systematic and continuing basis include in its firm

name the name of the nonlegal professional service

firm or any individual nonlegal professional affili-

ated therewith. A lawyer who assumes a judicial,

legislative or public executive or administrative post

or office shall not permit the lawyer’s name to re-

P A R T 1 2 0 0 - R U L E S O F P R O F E S S I O N A L C O N D U C T

3 5

main in the name of a law firm or to be used in

professional notices of the firm during any signifi-

cant period in which the lawyer is not actively and

regularly practicing law as a member of the firm

and, during such period, other members of the firm

shall not use the lawyer’s name in the firm name or

in professional notices of the firm.

(c) Lawyers shall not hold themselves out as having a

partnership with one or more other lawyers unless

they are in fact partners.

(d) A partnership shall not be formed or continued be-

tween or among lawyers licensed in different juris-

dictions unless all enumerations of the members

and associates of the firm on its letterhead and in

other permissible listings make clear the jurisdic-

tional limitations on those members and associates

of the firm not licensed to practice in all listed ju-

risdictions; however, the same firm name may be

used in each jurisdiction.

(e) A lawyer or law firm may utilize a domain name

for an internet web site that does not include the

name of the lawyer or law firm provided:

(1) all pages of the web site clearly and conspicu-

ously include the actual name of the lawyer or

law firm;

(2) the lawyer or law firm in no way attempts to

engage in the practice of law using the domain

name;

(3) the domain name does not imply an ability to

obtain results in a matter; and

(4) the domain name does not otherwise violate

these Rules.

(f ) A lawyer or law firm may utilize a telephone num-

ber which contains a domain name, nickname,

moniker or motto that does not otherwise violate

these Rules.

RULE 8.1 :

Candor in the Bar Admission Process

(a) A lawyer shall be subject to discipline if, in connec-

tion with the lawyer’s own application for admis-

sion to the bar previously filed in this state or in

any other jurisdiction, or in connection with the

application of another person for admission to the

bar, the lawyer knowingly:

(1) has made or failed to correct a false statement

of material fact; or

(2) has failed to disclose a material fact requested

in connection with a lawful demand for infor-

mation from an admissions authority.

RULE 8.2 :

Judicial Officers and Candidates

(a) A lawyer shall not knowingly make a false state-

ment of fact concerning the qualifications, conduct

or integrity of a judge or other adjudicatory officer

or of a candidate for election or appointment to ju-

dicial office.

(b) A lawyer who is a candidate for judicial office shall

comply with the applicable provisions of Part 100

of the Rules of the Chief Administrator of the

Courts.

RULE 8.3 :

Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has com-

mitted a violation of the Rules of Professional Con-

duct that raises a substantial question as to that

lawyer’s honesty, trustworthiness or fitness as a

lawyer shall report such knowledge to a tribunal or

other authority empowered to investigate or act

upon such violation.

(b) A lawyer who possesses knowledge or evidence con-

cerning another lawyer or a judge shall not fail to

respond to a lawful demand for information from

a tribunal or other authority empowered to inves-

tigate or act upon such conduct.

(c) This Rule does not require disclosure of:

(1) information otherwise protected by Rule 1.6;

N E W Y O R K S T A T E U N I F I E D C O U R T S Y S T E M

3 6

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NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion # 843 (09/10/2010)

Topic: Lawyer's access to public pages of another party's social networking site for the purpose of gathering information for client in pending

litigation.

Digest: A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as

Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.

Rules: 4.1; 4.2; 4.3; 5.3(b)(1); 8.4(c)

QUESTION

1. May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure

information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public

pages posted by the party that are accessible to all members in the network?

OPINION

2. Social networking services such as Facebook and MySpace allow users to create an online profile that may be accessed by other network

members. Facebook and MySpace are examples of external social networks that are available to all web users. An external social network may be

generic (like MySpace and Facebook) or may be formed around a specific profession or area of interest. Users are able to upload pictures and create

profiles of themselves. Users may also link with other users, which is called “friending.” Typically, these social networks have privacy controls that

allow users to choose who can view their profiles or contact them; both users must confirm that they wish to “friend” before they are linked and can

view one another’s profiles. However, some social networking sites and/or users do not require pre-approval to gain access to member profiles.

3. The question posed here has not been addressed previously by an ethics committee interpreting New York’s Rules of Professional Conduct

(the "Rules") or the former New York Lawyers Code of Professional Responsibility, but some guidance is available from outside New York. The

Philadelphia Bar Association’s Professional Guidance Committee recently analyzed the propriety of “friending” an unrepresented adverse witness in a

pending lawsuit to obtain potential impeachment material. See Philadelphia Bar Op. 2009-02 (March 2009). In that opinion, a lawyer asked whether

she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for

impeaching the witness at trial. The witness’s Facebook and MySpace pages were not generally accessible to the public, but rather were accessible

only with the witness’s permission (i.e., only when the witness allowed someone to “friend” her). The inquiring lawyer proposed to have the third party

“friend” the witness to access the witness’s Facebook and MySpace accounts and provide truthful information about the third party, but conceal the

association with the lawyer and the real purpose behind “friending” the witness (obtaining potential impeachment material).

4. The Philadelphia Professional Guidance Committee, applying the Pennsylvania Rules of Professional Conduct, concluded that the inquiring

lawyer could not ethically engage in the proposed conduct. The lawyer’s intention to have a third party “friend” the unrepresented witness implicated

Pennsylvania Rule 8.4(c) (which, like New York’s Rule 8.4(c), prohibits a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or

misrepresentation”); Pennsylvania Rule 5.3(c)(1) (which, like New York’s Rule 5.3(b)(1), holds a lawyer responsible for the conduct of a nonlawyer

employed by the lawyer if the lawyer directs, or with knowledge ratifies, conduct that would violate the Rules if engaged in by the lawyer); and

Pennsylvania Rule 4.1 (which, similar to New York’s Rule 4.1, prohibits a lawyer from making a false statement of fact or law to a third

person). Specifically, the Philadelphia Committee determined that the proposed “friending” by a third party would constitute deception in violation of

Rules 8.4 and 4.1, and would constitute a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third

party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit).

5. Here, in contrast, the Facebook and MySpace sites the lawyer wishes to view are accessible to all members of the network. New York’s Rule

8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network,

provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the

network). Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in

publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly

permitted.[1] Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the

lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor

directs someone else to do so.

CONCLUSION

6. A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in

litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer

does not "friend" the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting

deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for

unethical conduct by nonlawyers acting at their direction).

(76-09)

[1] One of several key distinctions between the scenario discussed in the Philadelphia opinion and this opinion is that the Philadelphia opinion

concerned an unrepresented witness, whereas our opinion concerns a party – and this party may or may not be represented by counsel in the

litigation. If a lawyer attempts to “friend” a represented party in a pending litigation, then the lawyer’s conduct is governed by Rule 4.2 (the “no-contact”

rule), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the

NYSBA | Ethics Opinion 843 http://www.nysba.org/AM/Template.cfm?Section=Home&template=/CM...

1 of 2 11/28/2011 9:11 PM

represented party’s lawyer. If the lawyer attempts to “friend” an unrepresented party, then the lawyer’s conduct is governed by Rule 4.3, which

prohibits a lawyer from stating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer's role,

and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party's interests are likely to conflict with those of

the lawyer's client. Our opinion does not address these scenarios.

Related Files

Lawyers access to public pages of another partys social networking site for the purpose of gathering information for client in pending litigation. (Adobe

PDF File)

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New York State Bar Association

Committee on Professional Ethics

Opinion #873 (06/09/2011)

Topic: Offering a prize to join attorney’s social networking sites

Digest: The Rules of Professional Conduct do not prohibit an attorney from offering a prize to join the attorney’s social network as long as the

prize offer is not illegal, but if the primary purpose of the prize offer is the retention of the attorney, then it will constitute an “advertisement” and will be

subject to the rules governing lawyer advertising. If the prize offer is an advertisement, and if it is targeted to specific recipients, and if a significant

motive is pecuniary gain, it will also constitute a “solicitation” and will be subject to additional requirements and restrictions.

Rules: 1.0(a) & (c), 7.1, 7.2, 7.3, and 8.4(c).

QUESTION

May a lawyer offer a prize as an incentive to connect to the inquirer on social networking sites?

OPINION

The inquirer currently uses various social networking sites, including Facebook, LinkedIn and MySpace. The inquirer is considering offering the

chance to win a prize (to be determined) for connecting to the inquirer on one of those sites. By building the inquirer’s social network this way,

the inquirer hopes to market the inquirer’s legal services more effectively.

The Committee assumes that the proposed “prize” will be awarded randomly to someone simply for agreeing to connect to the inquirer on one of

the inquirer’s social networking sites (e.g., for agreeing to become a new “friend” or “contact”). The Committee also assumes that a person will

not be required or expressly invited to retain the inquirer as an attorney in order to be eligible for the prize.

Preliminarily, we note that there may be laws or regulations governing sweepstakes and games of chance that could apply to the inquirer’s

proposal. The Committee does not address these issues because the Committee does not opine on questions of law. The Committee has

considered solely whether, assuming that the proposal is legal, it is also permissible under the New York Rules of Professional Conduct (the

“Rules”). The Committee likewise has not considered whether a prize offer would violate the Terms of Use of any particular social network. The

Terms of Use are a matter of contract between the inquirer and the social networking sites and are not within the Committee’s jurisdiction.

A. New York Rules of Professional Conduct Relevant to a Prize Offer

We begin by setting forth various provisions in the New York Rules of Professional Conduct that are relevant to the question posed.

New York Rule 7.1 (“Advertising”) governs advertisements by lawyers and law firms. Rule 1.0(a) defines the term “advertisement”:

“Advertisement” means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s

services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing

clients or other lawyers.

Rule 7.2 (“Payment for Referrals”) governs various types of compensation for marketing. Rule 7.2(a) of provides as follows:

A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or

as a reward for having made a recommendation resulting in employment by a client . . . .

Rule 7.3 (“Solicitation and Recommendation of Professional Employment”) governs advertisements directed at particular potential clients. Rule

7.3(a) provides:

A lawyer shall not engage in solicitation:

(1) by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is

a close friend, relative, former client or existing client . . . .

Rule 7.3(a)(1) uses the term “computer-accessed communication,” which is defined in Rule 1.0(c) as follows:

“Computer-accessed communication” means any communication made by or on behalf of a lawyer or law firm that is disseminated

through the use of a computer or related electronic device, including, but not limited to, web sites, weblogs, search engines, electronic

mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, instant messaging, or other internet

presences, and any attachments or links related thereto.

Rule 7.3(b) defines “solicitation”:

For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or

targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is

the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain.

Finally, Rule 8.4 (“Misconduct”) contains the general prohibition, in Rule 8.4(c), that a lawyer or law firm shall not “engage in conduct involving

dishonesty, fraud, deceit or misrepresentation.”

B. Applying the Rules of Professional Conduct to the Prize Offer

A “solicitation” in Rule 7.3(b) is by definition an “advertisement” that meets additional criteria, so something cannot be a “solicitation” unless it is

first found to be an “advertisement.” See Rule 7.3, cmt. [1] (“Not all advertisements are solicitations …. All solicitations, however, are

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advertisements with certain additional characteristics.”). If the proposed prize offer is not an advertisement as defined by the Rules, it will not fall

under the strictures that apply to advertising or solicitation. Therefore, we must first determine whether the offer is an advertisement. If so, we

must then determine if it is also a “solicitation” under Rule 7.3(b).

Is the prize offer an “advertisement”?

To fall within the definition of “advertisement,” the communication offering the prize must be for the “primary purpose” of the inquirer’s retention.

The fact that business development might be the inquirer’s ultimate goal in offering the prize would not trigger the Rules on advertising any more

than it would trigger those Rules if, for example, the inquirer were to join a local Chamber of Commerce, Kiwanis Club, or bar association, or if the

inquirer were to take other steps to expand the inquirer’s personal social circle, with the aim of meeting potential new clients. As stated in

Comment [6] to Rule 7.1:

Not all communications made by lawyers about the lawyer or the law firm’s services are advertising. Advertising by lawyers consists of communications

made in any forum about the lawyer or the law firm’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a

result of the communication. …

See also Rule 7.1, cmts. [7] - [9] (regarding various communications that may or may not be advertisements, depending on the circumstances).

If the prize offer is merely posted on the inquirer’s own social networking sites and people gain a chance to win the prize simply by connecting

with the inquirer – not for retaining the inquirer – it is not likely to be an “advertisement” even if the site elsewhere identifies the inquirer as an

attorney. If, however, the prize offer itself describes the inquirer as an attorney or describes the inquirer’s legal services or law firm (or both), the

prize offer would be an “advertisement” subject to all of the strictures of Rule 7.1, such as the mandatory use of the label “Attorney Advertising.”

Whether or not the prize offer is an advertisement, the inquirer must be honest. As observed in Comment [6] to Rule 7.1:

[A]ll communications by lawyers, whether subject to the special rules governing lawyer advertising or not, are governed by the general

rule that lawyers may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or knowingly make a material false

statement of fact or law. …

Is the prize offer a “solicitation”?

If posting the prize offer is considered an “advertisement,” we must also ask whether it will also be considered a “solicitation” within the meaning

of the Rules. Under Rule 7.3(b), the advertisement for a prize offer will be a solicitation if is “directed to, or targeted at, a specific recipient or

group of recipients, or their family members or legal representatives” and a “significant motive” is “pecuniary gain.” If the prize offer is a

solicitation, it will be subject to the special requirements of Rule 7.3.

e.g., posting the offer on a social networking site or sending it via email –would fall within the rubric of a “computer-accessed communication.”

However, the closing sentence of Comment [9] to Rule 7.3 states: “Ordinary email and websites are not considered to be real-time or interactive

communication.” Thus, if the inquirer merely posts the prize offer on his Facebook or other social networking site, or sends the offer to recipients

by email, then the offer will not be considered a prohibited “real-time or interactive computer-accessed communication” under Rule 7.3(a)

The policy reasons underlying the general prohibition against in-person solicitation, telephone contact, and real-time or interactive computer-

accessed communications are set out in Comment [9] to Rule 7.3, which provides:

Paragraph (a) generally prohibits in-person solicitation, which has historically been disfavored by the bar because it poses serious

dangers to potential clients. For example, in-person solicitation poses the risk that a lawyer, who is trained in the arts of advocacy and

persuasion, may pressure a potential client to hire the lawyer without adequate consideration. These same risks are present in

telephone contact or by real-time or interactive computer-accessed communication and are regulated in the same manner. ...

In sum, the prize offer will be an “advertisement” and must comply with Rule 7.1 only if the inquirer’s “primary purpose” is the “retention” of the

inquirer or his law firm.” Furthermore, the prize offer will be a “solicitation” only if it is an “advertisement” and is “directed to, or targeted at, a

specific recipient or group of recipients” (whether the recipients are already part of the offeror’s own social network contacts or are outside the

offeror’s social network contacts). If the prize offer is a “solicitation,” it will be subject to the strictures of both Rules 7.1 and 7.3. No matter how

the communication of the prize offer is labeled, it must be truthful per Rule 8.4(c).

Finally, the proposed prize offer does not violate Rule 7.2(a)’s ban against compensating or giving “anything of value” to a person “to recommend

or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client ….” The inquirer is

offering the chance to win a prize merely for connecting to the inquirer on a social networking site, not for recommending or employing the inquirer

as a lawyer.

CONCLUSION

Offering a prize offer to join an attorney’s social network is not prohibited by the Rules of Professional Conduct as long as the offer does not

constitute illegal conduct. If the primary purpose of the prize offer is to promote retention of the attorney’s legal services (which is a factual

question), then it is an “advertisement” and is subject to Rule 7.1 and other Rules governing lawyer advertising. If it is an advertisement that also

meets the definition of a “solicitation,” then it is subject to Rule 7.3 as well. If the attorney communicates the prize offer by posting it on a social

networking site or sending it by mail, and if the attorney does not communicate the offer in person, by telephone, or by a real-time or interactive

computer-assisted communication (other than to recipients who are close friends, relatives, former clients, or existing clients), then the

communications about the prize offer are not prohibited by Rule 7.3(a).

If the prize offer is not an advertisement, it also cannot be a solicitation and will therefore be subject neither to Rule 7.1 nor to Rule 7.3. However,

like every communication by a lawyer – advertisement, solicitation, or neither – it will be subject to the general prohibition in Rule 8.4(c) against

conduct involving dishonesty, fraud, deceit or misrepresentation.

(70-09)

Related Files

Offering a prize to join attorney's social networking sites (Adobe PDF File)

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Home For Attorneys Ethics Opinions

New York State Bar Association

Committee on Professional Ethics

Opinion 877 (9/12/11)

Topic: Permissible information on a law firm website.

Digest: A lawyer may accurately list, on his firm’s web site, his former positions in other firms. The web site may also accurately quote bona fide

professional ratings or comments from any ratings publication if the ratings or comments are factually supportable when published, and the lawyer

obtains and confirms in writing the client’s informed consent to any testimonial or endorsement with respect to a matter still pending.

Rules: 7.1(a), (b), (d) & (e); 7.5(a) & (b).

QUESTIONS

A lawyer has asked two questions about what information he may post on his firm’s web site:

May he list, in his web site biography, his former partnership positions in other firms?

May he, on the web site, quote favorable comments about his work that were made in a publication that rates lawyers and law firms?

OPINION

Question A: May a lawyer’s web site biography list his former partnership positions in other firms?

Rule 7.5(a) expressly provides that a lawyer may use “internet web sites” that do not violate any statute or court rule and are in accordance with

Rule 7.1. Within Rule 7.1, subparagraph (a)(1) prohibits a law firm from using or disseminating advertisements that are “false, deceptive or

misleading.” Rule 7.1(b)(1) expressly provides that advertisements may include (among other things) information as to “public offices and

teaching positions held.” Rule 7.1(b)(1) does not explicitly authorize inclusion of other kinds of experience (such as former partnership positions in

other firms), but in the analogous context of professional announcement cards, Rule 7.5(a)(2) more broadly authorizes such cards to state

“biographical data” that is in accordance with Rule 7.1.

We believe that the biographical data authorized for inclusion in professional announcement cards is authorized for inclusion on law firm internet

web sites as well. Lawyer advertising serves legitimate purposes of attracting and assisting potential clients, so long as such advertising is not

false, deceptive or misleading. See Rule 7.1, cmt. [3]. Accurate biographical data, such as identification of former partnership positions in other

firms, can be useful in carrying out those legitimate purposes.

Of course, references to such former partnership positions would be prohibited if they were false, deceptive or misleading. For example, it would

be impermissible for the reference to former partnership positions to imply that there is a continuing relationship with the former firm, or that the

lawyer’s current firm is a successor firm to the lawyer’s former firm, if that is not a fact, and it would be impermissible for the biographical data to

imply that the former partnership position lasted longer or ended for a different reason than was actually the case.

Question B: May Mr. Doe, on his web site, quote favorable comments about his work that were made in a publication that rates lawyers

and law firms?

A lawyer’s web site may include accurate quotations from a publication about the lawyer’s work if the lawyer’s web site and the quotations comply

with all applicable requirements of Rules 7.1 and 7.5. Under Rule 7.1(a)(1), an advertisement may not contain statements or claims that are false,

deceptive or misleading. This means not only that the web site must quote the publication accurately, but also that the quotations themselves

must not be false, deceptive or misleading.

The Rules also contain more specific requirements relevant to quotations. For example, if a quotation is a paid endorsement, the lawyer must

disclose that fact. See Rule 7.1(c)(1) (lawyer advertisement shall not “include a paid endorsement … about a lawyer or law firm without

disclosing that the person is being compensated therefor”).1 If the quoted statements describe or characterize the “quality” of the lawyer’s work,

Rule 7.1(d)(4) and (e)(2)-(3) require that the statements “can be factually supported by the lawyer or law firm as of the date on which the

advertisement is published or disseminated,” and require that the statements be accompanied by the specific disclaimer that “prior results do not

guarantee a similar outcome.” See N.Y. State 834 (2009) (an advertisement that contains a client testimonial requires the disclaimer concerning

results set out in Rule 7.1(e)(3)). If the comments from the publication contain “a testimonial or endorsement from a client with respect to a matter

still pending,” then under Rule 7.1(e)(4) – which the Appellate Divisions added to the New York Rules of Professional Conduct effective April 15,

2011 -- the lawyer must also obtain the client’s “informed consent confirmed in writing.”

If the quotation is from a publication that rates lawyers and law firms, however, then Rule 7.1(b)(1) may temper the requirement that the

statements “can be factually supported.” The last clause of Rule 7.1(b)(1) provides that an otherwise compliant advertisement may include

information as to “bona fide professional ratings.” We do not opine as to whether the ratings in any particular publications qualify as bona fide,

but for a rating to be bona fide and nondeceptive, it should at least be unbiased, nondiscriminatory and based on some defensible method.

Those standards are further spelled out in Comment [13] to Rule 7.1. If the quotations from the rating publication comply with all applicable

restrictions on advertising and lawyer web sites, it is permissible to include them.

CONCLUSION

A lawyer may accurately list, in his web site biography, his former partnership positions in other firms. His web site may also accurately quote

bona fide professional ratings, or comments from any ratings publication, if the comments were capable of factual support when published, the

required disclaimer about prior results is included, and the lawyer obtains and confirms in writing the client’s informed consent to any testimonial

or endorsement with respect to a matter still pending.

(23-10)

1 Until April 15, 2011, the quoted provision was numbered Rule 7.1(c)(2). On April 15, 2011, the New York Appellate Divisions amended Rule 7.1(c) by

deleting some provisions, amending some provisions, and renumbering various subparagraphs.

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BEFORE YOU SOCIAL MEDIA, DO YOU KNOW THE ETHICS RULES INVOLVED? Social media is a cost effective way to promote your firm and it helps you connect with potential clients. Before you embark on a social media campaign, let's explore the ethical considerations. In the case where an attorney or law firm uses social networking as a way to market the practice, the traditional attorney advertising rules still apply. If anyone has ever attended my CLEs regarding social media and ethics, I have started the class by repeating the same line, technology changes but the ethics rules do not change as quickly and the rules are applied the same online and offline. First, make sure you reaquaint yourself with Rule 7 of the Rules of the Professional Conduct. Given the fast pace of the Internet, it may seem burdensome or difficult to abide by these guidelines. My suggestion is to use your firm’s website, which is probably already compliant, as the underlying platform for any advertising you may do online. When setting up your social media for online advertising, first you must decide on your “handle” (in the case of Twitter) or username. You may not choose a name that may be misleading or promise a particular outcome. So, when choosing your handle or username, while your firm name or personal name may be appropriate, be careful if you choose to use a name like “facebook.com/alwaysgofree” as this might create an expectation in a potential client. Once you have chosen your name and signed up for the account, your next step is usually a description of who you are, what your firm does, etc. You want your message to be unified and cohesive. To comply with the Rules, it should neither contain statements that are deceptive or false nor should it reference yourself as an “expert” unless you do, in fact, fall into that narrow category, e.g., passed the patent bar. On that note, a potential pitfall in LinkedIn is filling out the Specialties section of your profile. According to the Rules, you cannot call yourself an expert unless you have specific credentials, e.g., passed the Patent Bar. So, I would suggest skipping this section altogether and instead fill out the “Skills and Expertise” section. When utilizing peer or client recommendations, pay particular attention to posting the disclaimer prominently, “Prior Results Do Not Guarantee Outcome”. Also, get your client's consent in writing and they should never mention an ongoing matter. Lastly, review all recommendations and make sure they accurately portray what you did for the testimonial parties. Now you are ready to begin the task of marketing yourself through social media or to a lesser extent just interacting with the social stratosphere at large. However, it is vital that you keep in mind and guard against not making representations that will cause unrealistic expectations or provide a false impression. Usually, this takes the form of excited utterances after a great win. Or, perhaps more you had a bad day at court and feel the need to Tweet to the world what a <&*%*^*$> the judge was. DANGER! Attorneys cannot speak ill of a judge in public. Cooler heads should always prevail, especially in social networking. Given the brevity of Tweets and the lack of real estate on social media sites, it is difficult to include the necessary disclaimers. To avoid problems is to route your tweets, status updates, etc. to your site where you have enough real estate to disclose what you need to disclose such as:

Attorney Advertising which is prominently displayed on your website; and

Prior Results Do Not Guarantee Outcome, especially if you are talking about a recent win. Finally, let's talk about Groupon. Now I know what you're thinking, but it is probably the same thing attorneys thought when TV advertising began. Indeed, it has worked for a handful of brave attorneys who were willing to try. In a recent opinion (12/13/11), the New York State Bar Association weighed in on marketing legal services through a daily deal site. Essentially, an attorney may offer their services through such a site provided the advertising is not misleading or deceptive. The attorney also must make clear that there is no relationship formed until the proper checks are performed. If the lawyer is unable to provide services, a full refund must be made. If the client terminates representation the refund is subject to the quantum meruit claim. The opinion goes into greater detail of non-lawyers receiving referral fees. In this case, NYSBA opines that the website is taking a fee for advertising and the website therefore has no individual contact with the client. You must also consider the possibility that your advertising campaign on a daily deal site is successful. I have seen businesses turn to Groupon as the answer to their cash flow only to accelerate their failure when they couldn’t satisfy the demand generated by the ad campaign. What are the implications of referring out those potential clients? When would that disclosure need to be made? Also, consider Rule 7.1, which provides specific guidance regarding disclosures of fees and how the attorney may be bound by these rates for no less than 30 days after broadcast. A great way to market yourself and be recognized as a leader in your legal field is by blogging or answering legal questions on social media sites, but how do you do that without worrying about creating an attorney client relationship or possibly violating solicitation rules? The question posed to the New York State Bar Association is whether a lawyer could answer legal questions online and whilst doing so, could they offer their services. Would this constitute solication. The New York State Bar Association opined that an attorney could provide general answers to online questions for the purpose of education. If the person asking the question does ask the lawyer about their services, the lawyer should respond privately regarding their services so it would not be publicly seen. The opinion goes on to further state that answering a question individually could create an attorney-client relationship. So, the best rule of thumb is to answer generally with the intent on educating the general public. Anything further, take the conversation offline. This is just the beginning of many opinions regarding attorney ethics and social media and the tips above are by no means exhaustive. So, when in doubt, check your local rules and utilize the Ethics Hotlines available through your bar association.

Faculty Biographies

Natalie Sulimani is the founder of Sulimani Law Firm, PC. She is engaged in a wide variety of intellectual property, technology and general corporate matters with a strong focus on start-ups and entrepreneurs. She has represented both domestic and international clients in an array of industries, including internet and new media, entertainment, jewelry, consulting and the arts.

Natalie started her legal career in commercial litigation at one of the top international law firms located in New York City. With this invaluable experience, she then served as in-house counsel at a start-up jewelry company. This company introduced non-conflict Canadian diamonds to the American market. She oversaw the many foreign concerns in the jewelry industry and fully realized the importance of intellectual property in the online world. Working closely with seasoned marketing professionals and members of the jewelry industry, she honed her skills to understand the impact marketing, trademark, copyright and internet law have on building a brand. Since 2004, Natalie has continued to pursue this field through her own practice and brings that knowledge and experience to you.

Natalie is Co-Chair of the New York County Lawyers’ Association (NYCLA)’s Cyberspace Law Committee as well as an Executive Committee member of the Corporate Counsel Section of the New York State Bar Association where she is actively involved in the Technology and New Media Subcommittee.

Natalie is also frequent speaker and panelist on intellectual property and small business matters. Particularly, she is frequently called upon to speak about Protecting Your Brand Online. She has presented many forums, such as ‘Are you Googling your privacy away?’, ‘Web 2.0: Upgrade your law firm marketing’ and spoken on many panels, including ‘Web marketing and the legal aspects’ and ‘Protecting Your Brand Online’.

A firm believer in helping others, Natalie is involved in Pro Bono work through the Legal Counseling Clinic of NYCLA advising in matters of Landlord/Tenant, Bankruptcy, Family Law and Employment as well as Project Restore that offers representation to ex-Felons that have been denied licenses by the Department of State.

Natalie has also co-authored an article about internet radio copyright royalty issues in the New York Law Journal that you can read here.

Natalie graduated from the University of Manchester at Kiryat Ono, Israel with an LLB. She lives in New York City with her husband and sons.

Natalie is admitted to practice in New York and in the Southern District Court of New York.

Jennifer Shaheen eMarketing & Technology Therapist New York, New York Marketing and Advertising

Current Technology Therapy Group, Twin Goat Media

Previous Johnson & Wales University, eBusinessCreations.com inc

Education Hofstra University

The eMarketing and Technology Therapist®, Jennifer Shaheen, is an expert at helping small and mid sized companies leverage technology to capitalize on current and future marketing objectives. Her business, The Technology Therapy Group, empowers small businesses to market their products and services through web development, web design and web marketing. Through years of experience, Ms. Shaheen has developed an understanding and an awareness of how technology can be applied to practical business applications and how it can generate an increase in sales and garner a greater market share. Learn more by visiting http://www.technologytherapy.com