NYCLA Professional Ethics Committee responds to the OCA with Comments on Attorney Advertising and Solicitation

February 20, 2026

David Nocenti

David Nocenti, Esq.
Office of Court Administration (“OCA”)
25 Beaver Street, 10th Floor New York, NY 10004
Email: rulecomments@nycourts.gov

VIA EMAIL

RE: Request for Public Comment on a proposal to amend Rules 1.0, 7.1, 7.2, 7.3 and 7.4 of the Rules of Professional Conduct relating to attorney advertising and solicitation

Dear M. Nocenti:

On behalf of the New York County Lawyers Association (“NYCLA”) Professional Ethics Committee (“the Committee”), we write to provide comments with respect to the Request for Public Comment on a proposal to amend Rules 1.0, 7.1, 7.2, 7.3 and 7.4 of the Rules of Professional Conduct (“NYRPC”) relating to attorney advertising and solicitation (“Proposed Rule”), available at here https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/RequestForPublicComment-RulesOfProfessionalConduct-AttorneyAdvertising-123025.pdf

In 2018, the American Bar Association (“ABA”) finalized a significant overhaul of its Model Rules on attorney advertising (Rules 7.1–7.5) with Resolution 101.¹ This change, the culmination of more than two years of study and public hearings by the ABA Standing Committee on Ethics and Professional Responsibility (“SCEPR”), was designed to “streamline and simplify” a “dizzying” patchwork of state regulations that had become technologically obsolete. ² The ABA shifted from a prescriptive regulatory approach to a more objective standard centered on the prohibition of false and misleading communications.

The 2018 amendments were prompted by proposals from the Association of Professional Responsibility Lawyers (“APRL”), which highlighted the need to reflect the reality of internet marketing and reduce compliance confusion across jurisdictions.³

First, the ABA eliminated the mandatory requirement to label targeted written solicitations as “Advertising Material,” because it concluded that consumers are now “accustomed to receiving advertising material via many methods of paper and electronic delivery”, and that “advertising materials are unlikely to mislead consumers due to the nature of the communications.”⁴

Second, through Model Rule 7.2(b)(5), the Proposed Rule authorizes lawyers to give “nominal gifts” as an expression of gratitude for a referral. These must be “token items” not intended or reasonably expected to be a form of compensation for the recommendation. The new provision states that a nominal gift is permissible only where it is not expected or received as payment for the recommendation. A nominal gift “cannot be promised in advance and must be no more than a token item.”⁵

Third, the ABA replaced the requirement to list a physical “office address” with a requirement for “contact information,” such as a website address, telephone number, or email to address technological advances on how a lawyer may be contacted.⁶

Fourth, Model Rules 7.4 (Specialization) and 7.5 (Firm Names) were deleted and their essential concepts were merged into Rules 7.1 and 7.2 to create a more unified regulatory structure.

The Proposed Rule adopts the ABA’s streamlined structure but maintains certain unique New York safeguards. For example, the Proposed Rule continues to strictly prohibit the use of fictitious law firm names or trade names that are false or misleading (Rule 7.1(e)(2)).

The Committee generally supports the Proposed Rule because it aligns with the purposes of the regulations governing advertising, referrals, and solicitations under the New York Rules of Professional Conduct (“N.Y. RPC”), particularly N.Y. RPC §§ 7.1, 7.2, and 7.3.

The Proposed Rule does not present First Amendment concerns because it simplifies and reduces the restrictions that the current rules currently contain and adopt the less-restrictive ABA model. As the SCEPR explained in proposing their amended advertising rules, the Supreme Court decided in Bates v. State Bar of Arizona, that “lawyer advertising is commercial speech protected by the First Amendment.⁷ Advertising that is false, misleading and deceptive may be restricted, but many other limitations have been struck down.” The current NYRPC 7.1 advertisement rule includes restrictions on client testimonials and seventeen other subparts, which the Proposed Rule argues makes the rule overly complicated. Replacing the current 7.1 rule with the ABA Model would reduce restrictions and limit advertising restrictions to the “false, misleading, or deceptive” standard in line with the ABA.

Furthermore, the Committee supports the inclusion of a materiality requirement in NYRPC 7.1. Under this standard, a communication is only ‘misleading’ if it contains a material misrepresentation or omission. This objective qualifier is essential to protect practitioners from disciplinary actions over de minimis technicalities, instead focusing enforcement on deceptions that significantly alter the ‘total mix’ of information a reasonable consumer relies upon to select counsel. This alignment with the constitutional commercial speech doctrine as outlined in Bates ensures that regulations are narrowly tailored to prevent actual consumer harm.⁸

The Committee recommends that OCA clarify the practical effect of deleting “advertisement” and “computer-accessed communication” because the Proposed Rule may create vagueness.

The Committee agrees that the current definitions can create line-drawing problems with emerging technology and the prevalence of social media. However, removing these defined terms may also create uncertainty for practitioners attempting to determine how the revised framework applies to common digital communications (including websites, social media, paid search, lead forms, and vendor-hosted intake tools). Therefore, the Committee proposes the inclusion of a new comment to the proposed NYRPC 7.1 that preserves the ‘primary purpose’ distinction to prevent informational content from being misclassified as regulated advertising, along the following lines:

• “The prohibition against false or misleading communications applies to all communications regarding a lawyer’s services. However, the requirements of this Rule do not apply to communications that are primarily educational, informational, or social in nature, and which are not disseminated for the primary purpose of client retention for pecuniary gain. In determining whether a communication has the ‘primary purpose’ of client retention, the lawyer should consider whether the content is intended to provide general legal information to the public as opposed to a specific solicitation of legal business. For example, a timely legal alert regarding a change in the law or a blog post discussing a recent court decision generally would not be considered a communication subject to the labeling and retention requirements of these Rules unless it includes a specific call to action for the viewer to retain the lawyer for a particular matter.”

Furthermore, the Committee supports the goal of simplifying and modernizing NYRPCs 7.1–7.4, but notes that the move from detailed New York provisions to broadly phrased, technology-neutral standards may introduce interpretive uncertainty in application. In particular, the “any media” authorization and “reasonable costs” language may prove under-specified in rapidly evolving marketing contexts. The Committee recommends that the revised NYRPCs 7.1–7.3 apply fully to contemporary digital marketing and communications, and that the definitional deletions are intended to simplify the framework, not narrow its coverage. To address this, we suggest amending Rule 7.2(b)(1) to explicitly include contemporary digital costs such as SEO and algorithmic placement, provided they remain grounded in a fair-market-value standard along the following lines:

• “(b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule**, including, but not limited to, the purchase of digital advertising space, search engine optimization (SEO) services, and fees for the use of algorithmic or automated marketing platforms, provided such costs reflect fair market value for the services rendered and do not constitute a reward for a specific recommendation**;”

In addition, we urge OCA to provide clearer guidance on the ‘nominal gift’ exception under proposed NYRPC 7.2(b)(5). While we support this adoption of the ABA standard, ‘nominal’ remains an undefined term that could lead to inconsistent enforcement across the Departments. We suggest OCA establishes a ‘bright-line’ monetary ceiling—or reference the existing ‘social hospitality’ standards in the Code of Judicial Conduct—to ensure that these tokens of appreciation do not inadvertently evolve into unauthorized referral fees.

Overall, the Committee supports the Proposed Rule, which recognizes modern lawyer communications while preserving the essential protections of the NYRPC. Adoption of the Proposed Rule, together with focused clarifying guidance, would demonstrate New York’s commitment to modernization and ethical integrity in lawyer advertising and solicitation.

Thank you for considering our comments. If you believe that it would be beneficial, we would be happy to discuss these comments with you further.