Can a lawyer place an ad in a lawful publication that also carries prostitution-related or other sexually related material?

Plain-English summary

A lawyer wanted to place an advertisement, containing only his name, address, telephone number, and a brief reference to his practice area, in a publication he described as carrying "prostitution related" advertisements and other "sexually related material," and represented that the publication was lawfully distributed. The question was whether the nature of the host publication made the ad improper.

The Committee noted it would not address the First Amendment commercial-speech dimension, but observed that Bates v. State Bar of Arizona and its progeny had significantly expanded a lawyer's constitutional right to advertise. Turning to the Code, it explained that DR 2-101(A) prohibits advertisements that are false, deceptive, or misleading or that cast a negative reflection on the legal profession as a whole, and DR 2-101(B) bars puffery, self-laudation, and unverifiable claims about the quality of services. The Committee concluded that an advertisement satisfying those content requirements was not made improper merely by the character of the publication in which it ran.

Because the lawyer also intended to state his practice area, the Committee added that the ad had to conform to DR 2-105, which prohibits a lawyer from claiming to be a "specialist" or "expert" absent certification from an appropriate body (citing Peel and Matter of Peperone). On the assumption that the content complied with the Code, the question was answered in the affirmative.

Currency note

This opinion was issued in 1996, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does the type of publication make a lawyer's ad unethical?

A: The opinion concluded that an otherwise Code-compliant advertisement is not improper solely because it appears in a lawful publication carrying prostitution-related or other sexually related material.

Q: What does the ad's content still have to satisfy?

A: The Committee concluded the ad must comply with DR 2-101(A) and (B), which bar false, deceptive, or misleading content, puffery, self-laudation, and unverifiable quality claims.

Q: Can the lawyer state a practice area or call himself a specialist?

A: The opinion concluded a practice-area reference must conform to DR 2-105, which prohibits claiming to be a "specialist" or "expert" without certification from an appropriate body.

Background and rules framework

The opinion was decided under New York's then-governing Code of Professional Responsibility: DR 2-101(A) and (B) (content of advertising) and DR 2-105 (claims of specialization). The Model Rules analogues are Rule 7.1 (communications about a lawyer's services) and Rule 7.4 (fields of practice and specialization).

Citations and references

Rules of Professional Conduct:

• New York Code DR 2-101(A), DR 2-101(B), DR 2-105 (Model Rules 7.1, 7.4 analogues)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising and commercial speech
• Peel v. Attorney Registration and Disciplinary Comm., 496 U.S. 91 (1990), claims of certification

See also

• NYC Bar Ethics Op. 1996-5: Nonrefundable Retainers and Fee Advertising
• NYC Bar Ethics Op. 1996-2: Announcing a Nonlawyer Hire

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1996-7-advertising-type-of-publication/