New York Legal Update

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? 

Unlawful Surveillance At The Legal Aid Society

Are lawyers any less perverted than the rest of society? Probably not, and maybe, just maybe, they are more so. Take the small example of attorney Peter A. Barta who was disbarred yesterday by the First Department - Matter of Barta, 2008 NY Slip Op 00071.

Mr. Barta was an attorney who was employed by the Legal Aid Society. He admitted that during the period from approximately May 25, 2004 through September 30, 2004 he intentionally used an imaging device to surreptitiously record and review a person dressing or undressing in the offices at the Legal Aid Society. He thus pleaded guilty to unlawful surveillance in the second degree (Penal Law § 250.45). Because unlawful surveillance in the second degree, is a class E felony, Mr. Barta lost his license to practice under Judiciary Law § 90(4)(b),(e).

I guess you never know who or where someone might be watching you. And a question: Why are people dressing and undressing at the Legal Aid Society? What is going on there?

Attorney Discipline Proceedings Apply To Licensed Legal Consultants

Licensed Legal Consultants are foreign attorneys who may render certain legal services in the State within the provisions of 22 NYCRR Part 521. On Tuesday the First Department decided a case in which it held that the attorney disciplinary mechanism must be applied to license legal consultants as well - Matter of Antoine, 2007 NY Slip Op 07935. In that case, the Departmental Disciplinary Committee for the First Department sought to immediately revoke a legal consultant's license without filing any formal charges or holding a hearing after the consultant made certain false representations that he was admitted to practice in New York, and held himself out as an attorney.

The First Department found that to do so was impermissible. Citing 22 NYCRR 610.7 and 22 NYCRR 521.5, the Court stated that the Committee must follow the same procedures in disciplining legal consultants as for attorneys, namely it must file formal disciplinary charges and hold a hearing before a Referee on those charges.

 

Dead Man's Statute Applies in Attorney Disciplinary Hearings - Sort Of

The Dead Man's Statute (CPLR 4519) essentially prevents a witness from testifying in his own behalf against an estate as to conversations he had with the deceased person. Last Thursday (August 23rd), the First Department was confronted with the issue of whether the Dead Man's Statute was applicable in attorney disciplinary hearings in Matter of Zalk, 2007 NY Slip Op 06505.

The attorney at issue, Richard Zalk, Esq., was accused of violating various disciplinary rules basically for misappropriating funds from his escrow account. The funds in the escrow account had come from the sale of a building owned by the attorney's client. The client was a widow, and the attorney had represented both her and her husband's estate over many years.

In his defense at the disciplinary hearing, the attorney testified that his now deceased client had told him shortly before her death that he could keep the money in the escrow account as his fee for the services he had performed over the many years. The estate of the client of course disputed that the monies held in escrow should belong to the attorney.

The Departmental Disciplinary Committee took the position that the Dead Man's Statute precluded the attorney from relying on his testimony as to the alleged fee arrangement. The Referee however disagreed finding that the Dead Man's Statute would only apply in an action brought by the estate.

The First Department agreed with the Committee and found that the statute (CPLR 4519) was applicable in attorney disciplinary hearings on the merits of the charges. Thus, because the attorney could not rely on his testimony as to his conversations with the deceased concerning the fee arrangement, it sustained the charges of misappropriation of funds.

However, the First Department went on to hold that such testimony by the attorney could be admissible in the context of determining the nature of the discipline to impose on the attorney. It stated that the punishment determination was separate and distinct from the hearing on the merits of the charges, and the estate of the deceased had no interest in the nature of the punishment imposed against the attorney. The Court did in fact consider the attorney's testimony in imposing the punishment, and found the attorney's testimony to be credible, and his actions to be non-venal. The Court found that the attorney honestly believed the funds in escrow to be his. Thus, the Court imposed the sanction of a two year suspension rather than a disbarment.

In short, the Dead Man's Statute (CPLR 4519) applies in attorney disciplinary hearings on the merits of the charges, but not in the consideration of the appropriate punishment.

Attorney Who Posts Link On Website About Disciplinary Investigation Violates Disciplinary Rules

Some of the Attorney Disciplinary rules are spectacularly and conveniently vague. Two of the best of these are DR 1-102 (a) (5) and (7) [22 NYCRR 1200.3(a)(5), (7)] which provide:

(a) A lawyer or law firm shall not:

(5) Engage in conduct that is prejudicial to the administration of justice;

(7) Engage in any other conduct that adversely reflects on the lawyer's fitness as a lawyer.

A case from the Fourth Department on June 8th should provide a warning for any lawyer who has a website, especially bloggers who cover legal news. Hey, like this one! The case was Matter of Moran, 2007 NY Slip Op 05093. The facts are a little vague from the Court's decision, but apparently the attorney at issue had posted on his website information about a confidential investigation being conducted by the Grievance Committee into alleged misconduct by a rival personal injury firm, and he included a link to a newspaper article concerning that investigation. The Fourth Department found that by doing so, the attorney engaged in conduct that was prejudicial to the administration of justice and that adversely reflected on his fitness as a lawyer, in violation of DR 1-102 (a) (5) and (7). The Court simply stated that the attorney should have known that the Grievance Committee investigation was confidential.

There were other violations of the Disciplinary Rules involved in the case which ultimately led the Court to impose the sanction of suspension. But finding that posting a link to a news article, which already disclosed the investigation, is prejudicial to the administration of justice? How so? Did the posting of the link somehow hinder the Grievance Committee investigation? I can't see how. Posting the link adversely reflected on the lawyer's fitness? Again, how so? I don't get it. The whole notion that investigations before the Grievance Committee are confidential is problematic in many ways. And to find that the mere repetition of an investigation's existence constitutes a violation of the above rules is in my opinion an overly broad reading.

Civil Rights Lawyer Lynne Stewart Disbarred After Conviction For Aiding Terror Client

Convicted civil rights attorney Lynne Stewart was disbarred by the First Department on Tuesday stemming from her convictions in 2005 for helping imprisoned Sheikh Omar Abdel-Rahman communicate with his terrorist followers (Matter of Stewart, 2007 NY Slip Op 03590). Stewart was convicted of one count each of conspiracy to defraud the United States, conspiracy to provide and conceal material support to terrorist activity and providing and concealing material support to terrorist activity. She also was convicted of two counts of making false statements [18 USC §  1001]. The First Department denied Lynne Stewart's request to voluntarily resign from the practice of law. Her request to resign was in a letter dated Nov. 14, 2006, after she was convicted, and therefore could not be accepted, the court said. The First Department found that the federal convictions of making a false statement were analogous to Penal Law § 175.35 - offering a false instrument for filing in the first degree. Stewart was sentenced to 28 months in prison, but she has been permitted her to remain free pending federal appeal.