Formal Opinion 1996-7: Advertising; Type of Publication

May 31, 1996

ACTION: FORMAL OPINION

OPINION:

TOPIC: Advertising; Type of Publication.

DIGEST: Assuming that the content of a proposed advertisement is in all respects in conformity with the Code, it is not rendered improper solely because it appears in a lawfully published periodical that contains”prostitution related” advertisements and other “sexually related material.”

CODE: DRs 2-101(A), 2-101(B).

QUESTION

May a lawyer place an advertisement in a lawfully published publication that contains “prostitution related” advertisements and other “sexually related material”?

OPINION

A lawyer wishes to place an advertisement in a publication that contains what he describes as “prostitution related” advertisements and other “sexually related material.” The lawyer represents that the publication is not distributed in contravention of any state or federal law. The proposed advertisement would simply contain the lawyer’s name, address, telephone number and a brief reference to the area of law in which he practices.

Advertising is governed by both legal and ethical considerations. Although it is beyond the scope of this Committee’s jurisdiction to address or consider the extent to which First Amendment issues under the commercial speech doctrine are implicated by this query, we note that Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and its progeny, have expanded significantly the constitutional right of an attorney to advertise.

The Code of Professional Responsibility governs advertising by lawyers admitted to practice in New York and prohibits any advertisement that is false, deceptive, misleading or that casts negative reflection on the legal profession as a whole. DR 2-101(A). Additionally, the Code proscribes any advertisement that contains puffery, self-laudation, claims regarding the quality of the lawyer’s legal services, or claims that cannot be measured or verified. DR 2-101(B). Assuming that the content of the proposed advertisement is in all respects in conformity with the Code, we conclude that this otherwise proper advertisement is not rendered improper solely because of the nature of the publication in which it appears.

Given that the lawyer also intends to mention in the advertisement the area of law in which he practices, we note that any advertisement that makes such a reference must conform to DR 2-105, which prohibits lawyers from calling themselves “specialists” or “experts” in a field (absent certification from an appropriate body, see generally Peel v. Illinois Attorney Registration and Disciplinary Comm., 496 U.S. 91 (1990); Matter of Peperone, 615 N.Y.S.2d 212 (4th Dep’t 1994)).

CONCLUSION

On the assumption that the content of the proposed advertisement is in all respects in conformity with the Code, the question presented is answered in the affirmative.