Can a lawyer put advertising materials in an information packet that a car dealer hands to people buying cars?

Plain-English summary

A lawyer asked whether he could include advertising material in an information package a car dealer would hand to people buying automobiles. The committee answered yes, subject to qualifications, treating the question under the advertising and solicitation rules of the former Code.

It restated that DR 2-101(A) and (B) permit advertising that is not false, deceptive, or misleading and that contains no puffery, self-laudation, or unverifiable quality claims, and that an advertisement may be sent or delivered to anyone (a recipient need not be a current client), subject to any filing or retention requirements (citing von Wiegen and Koffler). The lawyer is responsible for ensuring no statement violates DR 2-101.

The committee declined to opine on whether the arrangement might constitute improper solicitation under Judiciary Law 479 or whether that statute survives Bates v. State Bar of Arizona, because those are questions of law outside its jurisdiction. It found no substantive difference, however, between mailing an advertisement and having it handed over as part of an information package, presuming the lawyer would not deliver it personally (avoiding in-person solicitation) and that the dealer would deliver but not discuss the advertisement.

Finally, because the lawyer would not pay the dealer, there was no violation of DR 2-103(B) and (C), which bar compensating or giving anything of value to a third party to recommend or promote the lawyer's services. The committee cautioned, citing N.Y. State 566 (1984), that if any consideration were paid to a third party to disseminate the ad, it must be clear the third party is not endorsing or recommending the lawyer, since a paid-for but undisclosed "recommendation" is misleading. The question was answered in the affirmative.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The advertising and solicitation rules have been substantially revised since. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer's ad be distributed through a car dealer's buyer packet?

A: Under this opinion, yes. The committee found no substantive difference between mailing an ad and having a dealer hand it over in an information package, as long as the ad complies with DR 2-101.

Q: Does the dealer's involvement create a problem?

A: Only if the dealer goes beyond delivery. The committee assumed the dealer would not discuss or endorse the lawyer's services and that the lawyer would not deliver the package personally, avoiding in-person solicitation.

Q: Can the lawyer pay the dealer for including the ad?

A: The opinion did not approve payment. Because the lawyer would pay nothing, there was no DR 2-103(B)/(C) violation; the committee warned that any paid placement must make clear the dealer is not endorsing the lawyer.

Background and rules framework

The opinion interpreted New York's former Code: DR 2-101(A) and (B) (advertising that is not false or misleading) and DR 2-103(A), (B), and (C) (solicitation and payment to third parties to recommend a lawyer). The closest Model Rule analogues are Rule 7.1 (communications about a lawyer's services), Rule 7.2 (advertising and payment for recommendations), and Rule 7.3 (solicitation). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications about a lawyer's services)
• MR 7.2 (advertising and payment for recommendations)
• MR 7.3 (solicitation of clients)
• NY DR 2-101(A), (B); DR 2-103(A), (B), (C)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977): commercial-speech protection for lawyer advertising
• von Wiegen v. Committee on Professional Standards, 63 N.Y.2d 163 (1984); Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140 (1980): mailed solicitations

Other opinions cited:

• N.Y. State 566 (1984): paid third-party endorsement is misleading if undisclosed
• N.Y. State 565 (1984): improper to pay a marketing firm to solicit the lawyer's employment

See also

• NY State Bar Op. 664: Giving legal advice over a 900 telephone number
• NY State Bar Op. 661: Dramatized and fictional client testimonials in ads
• NY State Bar Op. 792: Celebrity client testimonial advertising

Source

• Landing page: https://nysba.org/opinion-659/