Can a lawyer email other lawyers asking them to refer cases, such as injuries from a particular drug, without it being a regulated solicitation?

Plain-English summary

A lawyer who handles cases involving people injured by a particular pharmaceutical product wants to email other lawyers, telling them he handles such cases and inviting them to refer such cases to him. The question is whether that is a regulated solicitation.

The opinion works through Rule 7.3(b), which defines "solicitation" as any advertisement directed at a specific recipient or group, whose primary purpose is the lawyer's retention and a significant motive for which is pecuniary gain. The opinion observes that the proposed email has many of these elements (it is targeted, its primary purpose is retention, and a significant motive is pecuniary gain), but it lacks the threshold element: it is not an "advertisement," because Rule 1.0(a) expressly excludes communications to other lawyers from the definition of "advertisement." Because the email goes only to other lawyers, it is not an advertisement and therefore is not a solicitation; the opinion cites Rule 7.3, Comment 1 ("a communication that is not an 'advertisement' is not a solicitation"). It follows that the email is subject neither to Rule 7.3's filing requirements nor to Rule 7.1's advertising provisions, and the opinion notes Rule 7.1, Comment 7 excludes communications to other lawyers even when their purpose is retention.

The opinion adds the constraints that do apply. The email must comply with Rule 8.4(c), which bars dishonesty, fraud, deceit, or misrepresentation, and with Rule 7.4, which restricts stating that a lawyer is a "specialist" or "specializes" in a field except in defined circumstances. Finally, if the sending lawyer intends to share a fee with a referring lawyer, the lawyer must comply with Rule 1.5(g), which governs dividing legal fees with a lawyer outside the firm.

The opinion concludes the lawyer may ethically send the emails: as communications to other lawyers, they are not advertisements and so are not solicitations, escaping Rules 7.1 and 7.3, but remaining subject to Rules 7.4 and 8.4(c).

In practice

Under this opinion, a lawyer may email other lawyers to solicit case referrals without triggering the advertising rules (Rule 7.1) or the solicitation filing requirements (Rule 7.3), because communications to other lawyers are excluded from the definition of "advertisement." The opinion holds the emails must still be truthful under Rule 8.4(c) and must observe Rule 7.4's limits on specialization claims, and any resulting fee split with a referring lawyer must satisfy Rule 1.5(g).

Common questions

Q: Are emails asking other lawyers for referrals regulated as solicitations?

A: No. The opinion concludes that because communications to other lawyers are excluded from the definition of "advertisement" in Rule 1.0(a), such emails are not advertisements and therefore not solicitations under Rule 7.3.

Q: Do the advertising rules in Rule 7.1 apply to these emails?

A: No. The opinion concludes the emails are not advertisements, so Rule 7.1 does not apply, citing Rule 7.1, Comment 7, which excludes communications to other lawyers even when their purpose is retention.

Q: What rules still apply to a lawyer-to-lawyer referral email?

A: The opinion states the email must comply with Rule 8.4(c) (no dishonesty or misrepresentation) and Rule 7.4 (limits on claiming to be a specialist), and any fee sharing with the referring lawyer must comply with Rule 1.5(g).

Background and rules framework

The opinion interprets New York's advertising and solicitation rules, anchored in the Rule 1.0(a) definition of "advertisement," which excludes communications to other lawyers. Rule 7.3 (closest Model Rule analogue MR 7.3, solicitation) regulates solicitation and its filing requirements; Rule 7.1 (analogue MR 7.2, advertising) regulates advertising; Rule 7.4 limits specialization claims; Rule 8.4(c) (MR 8.4(c)) bars dishonesty; and Rule 1.5(g) (MR 1.5(e)) governs fee division between lawyers in different firms.

Citations and references

Rules of Professional Conduct:

• MR 7.2 (advertising); MR 7.3 (solicitation)
• MR 8.4 (misconduct); MR 1.5 (fees; division of fees)
• NY Rules 1.0(a), 1.5(g), 7.1, 7.3, 7.4, 8.4(c)
• NY Rule 7.1, cmt. 7; Rule 7.3, cmt. 1

See also

• NY State Bar Op. 870: Non-exclusive referral agreement between a lawyer and a company
• NY State Bar Op. 845: Lawyer-broker sharing a brokerage commission with referring lawyers
• NY State Bar Op. 857: In-person distribution of law firm announcements

Source

• Landing page: https://nysba.org/ethics-opinion-841/