Thanks to The Sienko Law Office Blog and Sui Generis for notifying us that the NYCRR (New York Code of Rules and Regulations) is now available in full online Here. This is an important addition to the free legal resources available online. The Department of State should be applauded for making this resource available.
The New York State Senate Democratic Conference has joined forces with the State Banking Department, and lending and counseling institutions to help New York borrowers avoid unnecessary foreclosures. “Operation Protect Your Home” will bring lending institutions and housing counselors to New York City, Westchester and Nassau Counties in a series of forums starting this month. The first will take place tomorrow Sunday, February 10 at 11:15 at The Banking Board Room, New York State Banking Department, One State Street, 6th floor, Manhattan.
For additional information contact:
Fernando Aquino: 646.208.3874
Jacqueline McCormack: 212.709.1698
New York Blawger Andrew Lavoot Bluestone, who writes the New York Attorney Malpractice Blog, was found liable last week by the First Department for impermissible advertising prohibited by the Telephone Consumer Protection Act of 1991 (47 USC § 227) (Stern v Bluestone, 2008 NY Slip Op 00611). He was not found liable because of his blawg. Rather, he was found liable because of a series of faxes he sent to another attorney.
The Telephone Consumer Protection Act (TCPA) of 1991prohibits unsolicited faxes that have the effect and purpose of advertising services, directly or indirectly. In enacting the TCPA, Congress aimed to prevent cost-shifting to unwilling fax recipients and their deprivation of fax machine use. The relevant statute, 47 USC § 227(b)(1)[C] of the TCPA, provides in its pertinent part:
It shall be unlawful for any person within the United States, . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless (certain conditions apply)
The covered material is that which "advertis[es] the commercial availability or quality of any... service." (47 USC § 227[a][5]).
In the case decided by the First Department, Mr. Bluestone sent a series of 14 unsolicited faxes to Peter Marc Stern, Esq., a solo practitioner, between November 25, 2003 and March 29, 2005 [7 of the faxes were addressed to Stern, while the other 7 were addressed to a subtenant of Stern who shared the same fax machine with Stern]. The faxes were entitled "Attorney Malpractice Report" and subtitled "Free Monthly report on Attorney Malpractice From the Law Office of Andrew Lavoott Bluestone." Bluestone authored the faxes, and his legal practice consists primarily of representing plaintiffs in attorney malpractice claims.
Each "Attorney Malpractice Report" consisted of a one-page essay on legal malpractice containing information regarding issues and trends in that area. The faxes included generic statements about the elements of professional malpractice; the most common causes of attorney malpractice litigation; and brief discussions of situations that have given rise to attorney malpractice cases. At the bottom of each fax was a box containing Bluestone's contact information, office address, telephone number, fax number and web site address. Another web site address appeared at the top of the faxes. In seven of the faxes, the box also contained a telephone number to call in order to be removed "from this list." Six of the faxes contained the notation: "This is not an advertisement of the availability of services." Two of the faxes stated that the report is "[p]resented as an [e]ducational document by the [l]aw offices of Andrew Lavoott Bluestone." Bluestone obtained Stern's fax number from the New York Lawyers Diary and Manual.
Attorney Stern sought monetary damages of $500 for each fax sent, as well as treble damages for a willing and knowing violation of the TCPA, plus an injunction. Stern moved for summary judgment asserting he never authorized Mr. Bluestone to fax him, and never had a business relationship with him.
In opposition, Bluestone claimed, inter alia, that his "Attorney Malpractice Report" was not a solicitation for his services, and it was not, and was never intended to be an advertisement. In addition, Bluestone argued that the "Attorney Malpractice Report" was a fully protected non commercial exercise of Bluestone's First Amendment right of free speech.
The First Department affirmed a summary judgment award in favor of Mr. Stern. The Court stated:
While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits. Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. * * * Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services. By merely stating on the faxes that they are not advertisements of the availability of
services does not make it so, nor should it allow Bluestone to evade the prohibitions of the TCPA (citations omitted). Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services.
Personal Observations: If you ask me, it is the First Department's decision which defies common sense. It is clear that the faxes merely contained educational material about the law of attorney malpractice. It did not list Mr. Bluestone's successful cases, the verdicts he achieved, or anything to the effect that clients were encouraged to contact his office. And the only other thing that the faxes contained was Mr. Bluestone's name, address, telephone number, and website address. Is the court saying that any time an attorney provides educational material about the state of the law and provides his name he is soliciting business? That is just silly. If that were the case any time a CLE lecturer or law professor gave a lecture and gave his name and affiliation he would be "guilty" of advertising. There was nothing on the faxes such as: "Please contact my office if you believe you have been a victim of attorney malpractice." In fact, the faxes explicitly stated that they were not advertising the availability of services, indicating to me that Bluestone did not want to be contacted about his services. Instead, the Court seemed to have the ability to read Mr. Bluestone's mind, an ability which I guess one acquires by wearing a black robe. In addition, the faxes were not sent to potential clients. It would seem to me that for an advertisement to be an advertisement, it must be sent to the potential pool of customers. Unless Mr. Stern himself was a victim of attorney malpractice, I don't see how the faxes could be an advertisement. And there was also nothing on the faxes requesting referrals.
Even if Mr. Bluestone's faxes were advertising, so what. Ok, maybe clogging someone's fax machine is a little annoying, and maybe the TCPA is a good thing. But in terms of legal advertising, it continues to perplex me why attorneys believe they are somehow different or special from the providers of other goods or services. I like advertising. Advertising gives me information about the availability of good and services that I may desire. Imagine a world in which there were no advertising. How would I know what was available to satisfy my wants. And when it come to legal information, which arguably can be the most confusing of information to absorb, isn't it a good thing that attorneys like Mr. Bluestone seek to educated consumers about the law?
On March 4th, Pace Law School will host its Seventeenth Annual Philip B. Blank Memorial Lecture on Attorney Ethics. The lecture will be presented by Steven C. Krane, partner at Proskauer Rose LLP and will be entitled: "Taking the Red Pill: A Search for the Intersection Between Ethics and Morality." For additional information Click Here or see my Legal Events Calendar to the left.
Recently the New York State Bar Association released its Current Legal Issues Affecting The Profession 2008 - a manual containing concise summaries of 33 subjects of concern to the legal profession (see My Post of January 31). One of the more interesting concerns of the NY Bar Association this year is who should be able to provide legal services in the wake of a major disaster in New York. The NY Bar Association has been considering this question since the American Bar Association (ABA) adopted a Model Court Rule on the Provision of Legal Services Following a Major Disaster, and the ABA asked the states to consider adoption of their Model Rule.
After considering the ABA Model Rule, the State Bar Association has come up with its own variant which it now proposes be adopted as Rule 520.11(A) of the Rules of the Court of Appeals. Under this Proposed Rule, upon the declaration of a disaster or emergency by the Executive Branch, the Court shall determine whether an emergency exists in the justice system, requiring the assistance of lawyers from outside New York. And if the Court determines that there is such an emergency in the justice system, lawyers who are authorized to practice law in another jurisdiction may provide legal services in New York only a temporary basis, and without compensation from the client. In addition, such services are to be supervised through established, designated programs as set forth in the proposed rule. The proposed rule would not give authority for court appearances by lawyers from outside New York, except pursuant to the rules governing pro hac vice admission or pursuant to a declaration by the court granting such permission. Out-of-state lawyers providing services pursuant to the rule would also be subject to the disciplinary authority of the Appellate Division and would be required to file a registration statement with the Office of Court Administration.
I'm not sure it gives me great comfort to know that in the event of a mass disaster I won't have to pay out-of-state attorneys, but would have to pay in-state attorneys. Isn't it interesting that the State Bar Association's concern in the event of a mass disaster is that they continue to get paid, but other lawyers seeking to help won't get paid?
As reported in the New York Times, the U.S. Court of Appeals for the Second Circuit today upheld the dismissal of a lawsuit challenging the Atlantic Yards construction project near Downtown Brooklyn. The plaintiffs in the action are more than a dozen property owners who stand to lose their homes and businesses under eminent domain as the project moves forward. The developer, the Forest City Ratner Companies, has already started preparing the property to make way for a 22-acre complex to include a basketball arena for the New Jersey Nets, more than 6,000 apartments and considerable office space.
In its ruling, the Second Circuit stated that the project could move forward because it would provide benefits to the public, including the creation of park space, new housing units and improvements in the mass transit system. The plaintiffs had argued that such benefits were merely a pretext for the real goal of the plan: to enrich the developer, Bruce C. Ratner.
Matthew D. Brinckerhoff, a lawyer for the plaintiffs, said he planned to appeal the case to the United States Supreme Court.
The full text of the Second Circuit's decision can be found by Clicking Here.
In 1986, the New York State Legislature created the Long Island Power Authority (LIPA) to replace the privately-owned Long Island Lighting Company to provide electricity in Nassau County, Suffolk County, and a portion of Queens. In 2006, several LIPA consumers commenced actions against LIPA to recover rate increases LIPA imposed as fuel surcharges between 2001 and 2005. The actions alleged breach of contract, unjust enrichment, and deceptive trade practices in violation of General Business Law § 349. After the actions were consolidated, LIPA moved to dismiss the actions as time-barred.
Yesterday in Matter of Long Is. Power Auth. Ratepayer Litig., 2008 NY Slip Op 00662, the Second Department affirmed dismissal of the actions as time-barred. The Court held that since LIPA was a public authority and the complaint essentially alleged that rate increases were made in violation of lawful procedure, affected by an error of law, or were arbitrary and capricious or an abuse of discretion, the proper way to challenge the rate increases was with a proceeding pursuant to CPLR article 78. Article 78 proceedings are governed by a four-month statute of limitations, and thus, the actions were untimely.
The New York State Bar Association has released its 2008 manual - Current Legal Issues Affecting the Profession. The manual contains concise summaries of 33 subjects of concern to the legal profession, the organized bar, and the public. The handbook is divided into two sections, current topics and informational topics. The current topics section addresses issues of immediate concern, while the second grouping examines issues where action may not be imminent, but the subject matter is of sufficient interest to be included in the manual. This 27th edition of “Current Legal Issues” provides background information, and the relevant activity and policy position of the New York State Bar Association concerning each subject.
The subjects range from lawyer advertising to the impact of the U.S. Supreme Court's 2005 decision in Kelo v. City of New London, 545 U.S. 469 on eminent domain. Also included is an examination of a proposed rule, intended to apply in the wake of a major disaster, that would allow out-of-state lawyers to do pro bono work in New York if it were deemed necessary.
The full text of the manual can be found by clicking on the above link.
On March 2-3, Cardozo School of Law will host a two day symposium on self-incrimination entitled: "The Future of Self-Incrimination: Fifth Amendment, Confessions, and Guilty Pleas." The symposium will take a fresh look at the use of confessions and guilty pleas as a means to establishing a criminal defendant's guilt. Specifically, it will discuss the Fifth Amendment and common law protections against coerced confessions, plea bargaining and the vanishing trial phenomenon, and the relationship between pleas and sentencing, and a number of related issues. For additional information Click Here or see my Legal Events Calendar on the left.
On February 8th, Columbia Law School will host an all-day symposium on the recent evolution of the "fair use" doctrine of U.S. copyright law. The symposium, which features fair use experts from law schools across the country and a representative of the U.S. Copyright Office, will probe a variety of topics, such as whether the relative weight of the factors used to invoke fair use has changed in the digital world, and other approaches that have been proposed to supplement or further define fair use. For additional information Click Here or see my NY Legal Events Calendar on the left.
Change is good
