New York State Bar Association, Comm. on Prof’l Ethics, Op. 830 (2009)

Brief Summary
New York lawyers may contact lay organizations to inform them of the lawyer’s availability to speak on legal topics without violating state ethics rules. If, however, the communication is made expressly to encourage participants to retain the lawyer or firm, then the communication must comply with the ethics rules on advertising and solicitation.

Complete Summary
The New York State Bar Association Committee on Professional Ethics opined that a lawyer may ethically contact non-lawyer organizations to inform them that the lawyer is available to speak on legal topics. The Committee stated that the ethics rules had evolved to eliminate express barriers to lawyers’ participation as speakers on legal topics for non-lawyers. The opinion states that the ethics rules on advertising (Rule 7.1) and solicitation (Rule 7.3) nonetheless would apply if such communications had the express purpose of encouraging participants to retain the lawyer.

The Committee further noted that it lacked jurisdiction to determine whether New York Judiciary Law § 479 prohibited such communications. Section 479 is more strict than the ethical rule on solicitation in that it appears to prohibit both direct and indirect solicitation of legal business. Indeed, there is an open question, the Committee noted, as to whether the solicitation ban in Section 479 is still constitutional under Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Significance of Opinion
This opinion helps to define the scope of the rules of professional conduct with respect to advertising and solicitation in the context of legal seminars and programs, taking proper account of the robust modern role of lawyers in legal education for non-lawyers. In addition, the opinion properly recognizes that the constitutionality of the court’s archaic law banning all solicitation by lawyers is subject to question.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

REGISTER NOW for the Ninth Annual Legal Malpractice & Risk Management Conference

March 3-5, 2010
The Westin Chicago River North Hotel
320 North Dearborn Street
Chicago

Attend the industry's premier annual event focused on current and important developments in the law and litigation of malpractice claims, legal malpractice insurance and risk management strategies. Each conference panel examines recent case law and significant developments throughout the last year. One and one-half days will be devoted to legal malpractice (March 3-4), and one and one-half days will be devoted to risk management (March 4-5).

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Conference Topics

Legal Malpractice Sessions (March 3-4)

• Standing to Sue, Privity and Duty of Disclosure
• Significant Developments in Litigating Legal Malpractice Claims
• What's Your Little Secret? They Want to Know
• Judgmental Immunity — A Modern Look at the Legal Profession's Oldest Defense 
• Insurance Coverage Update: The Year in Review – Prior Knowledge Redux and the Definition of Professional Services
• 2009 LMRM Case Updates and Statutory Causes of Action
• Stump the Panel

Legal Malpractice/Risk Management Cross-Over Sessions (March 4)

• The Insurance Marketplace and Considerations
• Who is the Client and Standing to Sue – Successor Entities, Affiliates and Subsidiaries
• Advance Conflict Waivers, Screening and How to Do It

Risk Management Sessions (March 4-5)

• The General Counsel Forum
• Suits for Fees/Mandatory Fee Arbitration
• Risk Management Considerations in Restructuring and Winding-Up Law Firms
• Managing Client and Law Firm Data, and What Gives When Client and Firm Policies Conflict?
• On the Horizon – The Slow Motion Revolution

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