NYCLA Ethics Opinion 721: Internet Advertising



The New York County Lawyers’ Association



NYCLA ETHICS OPINION NO. 721 (Issued 5/14/97)












DR 2-101; DR 2-103; DR 2-105.


The inquirer is an attorney who is a member of a special interest organization of lawyers, law students and legal workers that sponsors an internet home page through a local internet provider. The organization is described as a networking and social organization.


The internet provider has agreed to permit the organization to include an on- line “Attorney Referral Board” as part of its home page at no additional charge for a six month period in the hope that the participating attorneys will eventually subscribe to the internet provider’s service. The inquirer asks whether such listings are ethical, whether the use of the term “Attorney Referral Board” is permitted and whether the introductory period without charge may be accepted by the participating attorneys.


The organization’s home page will contain an icon for the Attorney Referral Board. The user who clicks on the icon will then be directed to a directory of legal subject areas, e.g., trusts and estates or civil rights. By clicking on one of the subject areas, the user will see a brief description of that area of law and a listing of attorneys who practice in that area. Each attorney will provide information about how he or she may be contacted and will have the option of providing one or more lines of additional information.


The inquirer does not provide any information about the number of attorneys who will participate. We assume that any attorney who is a member of the organization may be listed on the referral board.


Advertising on the internet is not prohibited by the Code of Professional Responsibility. The listing of an attorney in a directory on the internet is, by itself, no different than a listing of member attorneys in any other directory published by an organization. See Iowa Op. 95-21, ABA/BNA Law, Man. Prof. Conduct 1101:3601 (1995) (listing on a non-profit organization’s web page is simply another form of directory advertising); cf. Nassau County Op. 96-4, ABA/BNA Law. Man. Prof. Conduct 1101:6251 (1996) (lawyer may advertise in not-for-profit organization’s directory of professionals and retailers). Thus, if the proposed advertisement by listing on the internet does not otherwise violate the applicable disciplinary rules, it is not prohibited by the Code.


We do not view the listing described by the inquirer as a prohibited for-profit lawyer referral service because the user will select the attorneys whom he or she chooses to contact, N.Y. State Op. 29-99 (1989), and no payment is to be made to the internet provider on the basis of matters actually generated by the listings. DR 2-103(B). The inquirer has, however, noted that attorneys are to be listed by ‘‘specialty.” We note that, while an attorney may identify the areas in which he or she practices, it is unethical to hold oneself out as a specialist unless certified by the appropriate authority in that jurisdiction. DR 2-105.


We also note that the use of the phrase ‘‘Attorney Referral Board” is potentially misleading, in that it may indicate that the participating attorneys have in some way been recommended by the sponsoring organization. The inquiry does not indicate that any such screening has taken place. If screening of the participant lawyers does occur, such that a listing equates with a recommendation by the organization, then the participating lawyers may accept the resulting recommendations only in accordance with DR 2-103(D)(3). For example, an attorney may not ethically accept a recommendation from an organization he or she formed or promoted for his or her own financial benefit or that of a partner, associate or affiliated lawyer.


Since the listing is an advertisement, it must conform with the content requirements of DR 2-101. We do not interpret DR 2-101 (F)( 1) to require that a copy of the internet page be filed with the Departmental Disciplinary Committee of the appropriate judicial department. This is because DR 2-101(F)(1) requires the filing of a copy of any advertisement that is mailed or which is distributed by any means “other than by radio, television, directory, newspaper, magazine or other periodical” (emphasis provided). Our view is that an on-line directory such as the one proposed by the inquirer falls within the group of advertisements, i.e, directories, that need not be filed.


Finally, our opinion is that accepting a listing without charge during the six- month introduction period is not unethical A lawyer may not pay for a recommendation of employment. DR 2-103(B). Here, however, it is not the internet provider that is making a recommendation — if, indeed, any recommendation is being made at all. Rather, the internet provider is merely an electronic publisher that wishes to market the medium through a free introductory period. Nothing of value will pass to the provider as a result of any employment generated by a listing, and any recommendations that are made are those of the sponsoring organization, which has provided the listings as a service to its members.


In summary, an attorney may ethically participate in an internet directory of attorneys, provided that the substance of the directory listing is consistent with the disciplinary rules regulating attorney advertising.