Can a lawyer run ads or send letters to a company's employees inviting them to join an employment discrimination class action?

Plain-English summary

A lawyer who represented clients planning an employment discrimination class action against a corporation asked whether he could publish newspaper or magazine ads, or send letters to current and former employees, describing the planned suit and inviting similarly situated people to participate or provide information. The committee said the lawyer should first consider whether the campaign would benefit or could prejudice his existing clients (DR 7-101(A)(3)); if it would not damage them, the committee saw no ethical bar, subject to the guidelines below.

Drawing on N.Y. State 487 (1978), the committee restated that DR 2-101(A) permits lawyer advertising and publicity provided it is not false, deceptive, or misleading and does not cast adverse reflection on the profession, citing Bates v. State Bar of Arizona. A letter or advertisement may be sent to anyone, including targeted recipients likely to have similar claims, subject to the filing and retention requirements of DR 2-101(F) and any Appellate Division requirements, and the lawyer may accept the resulting representation even from non-clients. The committee cautioned that the communications must not create unjustified expectations or false hopes, contain self-laudation, or make unverifiable quality claims (DR 2-101(A), (B)).

The committee added that DR 2-104(F) permits a lawyer to accept employment from those contacted to obtain their joinder in class action litigation where success depends on joining others, subject to DR 2-103(A), which incorporates state-law limits on solicitation, including Judiciary Law section 479. It noted that Supreme Court decisions (Shapero, Florida Bar v. Went For It, Bates, and others) may limit the reach of section 479's solicitation prohibition on constitutional grounds, but stressed that whether the conduct would be improper solicitation under section 479, or whether such a prohibition is constitutionally enforceable, is a question of law outside the committee's jurisdiction. Subject to those qualifications, it answered the question in the affirmative.

Currency note

This opinion was issued in 1995, 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 in particular 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 mail letters to a company's employees about a planned class action?

A: The opinion concluded yes, including to recipients targeted because they likely share the claim, subject to the filing and retention requirements of DR 2-101(F) and any Appellate Division rules, provided the letters are truthful and not misleading.

Q: What must the lawyer do before launching the campaign?

A: The opinion concluded the lawyer must first consider whether the advertising or mailing could prejudice existing clients under DR 7-101(A)(3) and proceed only if it would not damage them.

Q: Did the committee decide whether this violates New York's anti-solicitation statute?

A: The opinion declined to decide that. It noted Judiciary Law section 479 and the Supreme Court cases that may limit it, but held that whether the conduct is improper solicitation, or the statute constitutionally enforceable, is a legal question outside its jurisdiction.

Background and rules framework

The opinion interpreted DR 2-101 (advertising), DR 2-103(A) (solicitation limited by state law), DR 2-104(F) (accepting employment from those contacted to join class litigation), and DR 7-101(A)(3) (avoiding prejudice to a client) of New York's former Code, together with Judiciary Law section 479. The Model Rule analogues are Rule 7.2 (advertising) and Rule 7.3 (solicitation). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 7.2 (advertising)
• MR 7.3 (solicitation of clients)
• NY DR 2-101; DR 2-103(A); DR 2-104(F); DR 7-101(A)(3)

Statutes:

• N.Y. Judiciary Law section 479 (solicitation of legal business)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), commercial-speech protection for lawyer advertising
• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988), targeted direct-mail solicitation
• Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), limits on direct-mail solicitation

Other opinions cited:

• N.Y. State 487 (1978); 563 (1984); 539 (1982): permissible advertising and targeted mailings

See also

• NY State Bar Op. 1227: Targeted email to prospective class action plaintiffs
• NY State Bar Op. 1039: Blog opt-in box as advertising or solicitation
• NY State Bar Op. 679: Paying a nonlawyer investigator in a class action

Source

• Landing page: https://nysba.org/opinion-676/