NY Blawger Found Liable For Advertising

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? 

Comments

[Randy L. Braun]

Right on, Thomas! I think the First Department is totally wrong on this one. Where does one draw the line between education and solicitation? Are we attorneys to provide information anonymously in order to avoid falling into the "advertisement" category? True, clogging up a fax machine may be inconvenient. However, seven of Mr. Bluestone's faxes contained a box with a telephone number to call in order to be removed from the fax list. Did the recipient ever CALL that number and, if so, did the faxes continue? If that had been the case, then perhaps there would be a claim. I think the courts are making it very difficult for attorneys to do their jobs, particularly in terms of educating the public which, apparently, we are ethically bound to do.
So how do we proceed? Do we continue to provide educational materials bearing our contact information, thereby running the risk of violating disciplinary edicts? Or, do we cease furnishing educational information for the benefit of the public, thus running afoul of our ethical obligations? It's quite the conundrum.

[Philip L. Frankel, Esq.]

You seem to have missed the point. The court did not decide whether the advertising was appropriate for a lawyer or whether or not lawyers should be allowed to advertise. The court only decided whether or not the fax was advertising and violated the TCPA. The fax was obviously advertising. If it wasn't, I would start sending out thousands of faxes.

You seem to be making the same mistake that so many of my friends and clients make all the time. You can call a cat a dog, but it is still a cat. You can say that it is not a cat, but that does not mean that it is not. I had a doctor asked me if it would be legal for him to pay a runner to send him patients, if the runner billed him for marketing. Of course, it's not. In fact, the same runner was arrested two years later along with several doctors and lawyers.

I can place an advertisement and state "this is not advertising", but that doesn't mean it isn't just because I said so. I wouldn't mind stating at the top of the page that it is not advertising, because I know people will still call. In fact, maybe even more people will call.

The only reason that he spent money and time to send faxes, if not to get people to call him directly, was to get people to read his blog, which is good for business because it would eventually bring clients. This is advertising. Does it violate the TCPA? I don't know because I have not read it, but apparently the court held that it is.

Even use of a business card is advertising. Just telling someone orally that you are a lawyer who is available for representation is advertising. Without advertising, there can be no business. The question is whether any kind of advertising is allowed by the TCPA. When looking at lawyer advertising, the question is whether the advertising violates constitutionally permissible ethics rules, not whether it is advertising or not.

Phil Franckel
http://www.Lawyer-Advertising-Blog.com
http://www.hurt911.org/getclient.php