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NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
Opinion #841 (04/12/2010)
Topic: Lawyer sending e-mails to other lawyers seeking referrals of
people injured by a particular pharmaceutical product.
Digest: E-mails to other lawyers requesting referrals of clients are
not “solicitations” regulated by Rule 7.3. However, the
e-mails must comply with Rules 7.4 and 8.4(c).
Rules: 1.0(a); 1.5(g); 7.1; 7.3; 7.3(b); 7.4; 8.4(c).
Comments: Rule 7.1, cmt. 7; Rule 7.3, cmt. 1.
QUESTION
1. May a lawyer send e-mails to other lawyers asking them to refer
cases to the sending lawyer involving people injured by a particular
pharmaceutical product?
FACTS
2. A lawyer who handles cases involving people injured by a
particular pharmaceutical product proposes sending e-mails to other
lawyers advising them that he is handling such cases and inviting the
recipients of the e-mails to refer such cases to the lawyer.
OPINION
3. Rule 7.3 of the New York Rules of Professional Conduct (the
“Rules”) establishes restrictions on solicitation by lawyers
and sets forth the filing requirements for any permitted solicitation.
Rule 7.3(b) defines the term
“solicitation.” It states
that, for purposes of Rule 7.3:
“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. [Emphasis added.]
4. The communication in question here contains many elements of
Rule 7.3(b) – it is “by a lawyer … targeted at …
a group of recipients”; the
“primary purpose” of the communication is “the
retention of the lawyer”; and a “significant motive” for the communication is
“pecuniary gain.” But the
communication lacks one crucial element of a solicitation: the
communication is not an “advertisement” because it will be
sent to other lawyers. Rule 1.0(a)
(which defines “advertisement”) expressly excludes
communications to other lawyers from the definition of
“advertisement.” Specifically, Rule 1.0(a) provides:
"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. [Emphasis added.]
5. Since the communication in question will be sent only to other
lawyers, it is not an
“advertisement.” Therefore,
it is also not a “solicitation” within the meaning of Rule
7.3(b). See Rule 7.3, cmt. 1
(“By definition, a communication that is not an
‘advertisement’ is not a
solicitation.”) A communication that is not a
“solicitation” is not subject to the filing requirements (or
any other requirements) of Rule 7.3. Moreover, since the communication
is not an advertisement, it is also not subject to the provisions of
Rule 7.1 (“Advertising”). Comment 7 to Rule 7.1 provides that communications to other
lawyers are excluded from the special rules governing lawyer advertising
even if their purpose is the retention of the lawyer or law firm sending
them.
6. Of course, the communications must nonetheless comply with Rule
8.4(c), which prohibits a lawyer from engaging in conduct involving
“dishonesty, fraud, deceit or misrepresentation,” and they
must comply with Rule 7.4 (“Identification of Practice and
Specialty”), which prohibits a lawyer or law firm from stating
that the lawyer or law firm is a “specialist” or
“specializes” in a particular field of law except in special
circumstances.
7. Finally, if the attorney sending the communications intends to
share a portion of the fee with a referring attorney, the sending
attorney must comply with Rule 1.5(g), which regulates a division of
legal fees with another lawyer not associated with the same law
firm.
CONCLUSION
8. A lawyer may ethically send e-mails to other lawyers asking for
referrals of clients who have been injured by a particular
pharmaceutical product. Since a
communication to other lawyers is expressly excluded from the definition
of “advertisement,” the communication is not an
advertisement, and is therefore also not a
“solicitation.” Consequently, it is not subject to the provisions of either
Rule 7.1 or Rule 7.3. However, it is
subject to the provisions of Rule 7.4 and Rule 8.4(c).
(64-09)
Related Files
Lawyer sending e-mails to other lawyers seeking referrals of people injured by a particular pharmaceutical product. (Adobe PDF File)
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