New York Legal Blog Round Up
The New York Legal News Round Up

Do New York Lawyer Advertising Rules Allow NY Lawyer to Solicit Clients in Another State?

Attorney_adsI received the following rather interesting inquiry via email from a New York lawyer who reads this blog:

Is a New York attorney allowed to create a website to solicit for cases in another state when no partner or associate is admitted in that state? I assume that the attorney is hoping to simply sign up the clients and refer those cases to an attorney admitted in that state.

It's an interesting issue and I'm not entirely sure of the answer.  It requires analysis of those newly promulgated New York lawyer advertising rules still in effect following the NDNY's issuance of an injunction staying some of the rules, as explained in this prior post, in conjunction with analysis of the particular rules governing advertising in the targeted jurisdiction.

After reviewing the applicable rules, I'm not entirely sure whether the rules prohibit solicitation in another jurisdiction.  My educated guess is the all time favorite response of lawyers that drives clients crazy:  it depends.  It depends on the method and content of the solicitation,  who is solicited and whether the type of solicitation used complies with applicable rules regarding lawyer advertising, among other factors.

In other words, I simply can't answer the question.  But, what I can do is set forth a few of the applicable provisions and ask you, my learned readers, for your opinion.  And, that I shall do.

1200.8(b) provides:

(b) For purposes of this section “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. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

1200.8(a) prohibits solicitation:

(1) by in-person or telephone contact, or by real-time or interactive computeraccessed communication 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 sections 1200.6(a), 1200.8(g) or 1200.41-a of this Part; (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, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining 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 performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel.

It would seem that as long as the proposed web site does not fall under the definition of "solicitation" set forth above, complies with all applicable New York rules, including those referred to in 1200.8(a)(2), and does not violate the rules of the targeted jurisdiction, it would be ok.  But that's just my gut instinct, and certainly does not constitute legal advice in any way, shape or form.  And, divining the answer won't be easy since analysis of the applicable provisions would most certainly take a fair amount of time.

Another interesting issue raised by this question is whether the proposed conduct--soliciting clients in another jurisdiction in which one is unlicensed for the purpose of referring said clients to a licensed attorney in that jurisdiction--constitues the "practice" of law without a license.

Again, my gut instinct is that it doesn't, since no "practicing" actually occurrs, but again, I've not researched the issue.

So, what do you think, fair readers?  Anyone care to offer their learned opinion?


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