January 2008
Featured Disciplinary Case
Topic
A lawyer is prohibited by federal law from sending unsolicited fax advertisements to prospective clients. The lawyer cannot avoid liability by claiming that such marketing is
merely informational in nature and not intended to obtain business.
Summary
This is not a disciplinary case. Instead, it is a consumer action brought in New York state court by a long-time lawyer who either got tired of receiving annoying unsolicited facsimile transmissions from another attorney or recognized a revenue-generating opportunity. You decide.
The federal Telephone Consumer Protection Act of 1991 (TCPA) prohibits 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 Section 227(b)(1)[C], provides:
[i] the unsolicited advertisement is from a sender with an established business relationship with the recipient;
[ii] the sender obtained the number of the telephone facsimile machine through-
(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or
(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution...
Importantly, the statute authorizes a private right of action in state court to enjoin a violation of the TCPA and to recover for actual monetary loss from such violation, and/or to receive $500 in damages for each such violation, whichever is greater. If a court finds that a defendant willfully or knowingly violated the TCPA, it may award treble damages.
Peter Marc Stern was licensed in New York in 1963 after graduating from the Syracuse College of Law. He is a sole practitioner with an office in Mid-Town Manhattan. Stern is listed in Yellowpagesnationwide.com as a “Consumer Protection Attorney.” Between November 25, 2003 and March 29, 2005, Stern said that he received fourteen faxes from lawyer Andrew Lavoott Bluestone on a fax machine that Stern owns. Bluestone, also a graduate of Syracuse, was admitted in New York in 1979 and has a law office in the landmark Woolworth Building on Broadway. Bluestone’s website states that the: “law firm of Andrew Lavoott Bluestone represents litigants in Attorney Malpractice, Professional Malpractice and Civil Litigation.” http://www.bluestonelawfirm.com/.
Seven of the faxes at issue were addressed to Stern, and the other seven were addressed to a subtenant of Stern who shared the same fax machine with him. The subtenant, however, moved to an office in Nyack, New York approximately four years before the faxes were sent. The faxes were entitled the Attorney Malpractice Report and contained the following caption: “Free Monthly report on Attorney Malpractice From the Law Office of Andrew Lavoott Bluestone.” Bluestone authored the faxes. 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 was “[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.
Stern filed a TCPA-based complaint asserting two causes of action. First, he sought monetary damages of $500 for each fax transmitted, for a total of $7,000, as well as treble damages for Bluestone's willful and knowing violation of the TCPA. Thus, he wanted $21,000 from Bluestone. Second, he sought injunctive relief. Bluestone denied the material allegations of the complaint and asserted affirmative defenses. Stern moved for summary judgment as to liability and requested a finding that, as a matter of law, Bluestone willfully and knowingly violated the TCPA. In addition, Stern sought summary judgment on his second cause of action for injunctive relief, and the dismissal of Bluestone's affirmative defenses. In his affidavit in support of the motion, Stern asserted that he never authorized Bluestone to transmit the faxes to him, or to anyone in his office, that he never had a business relationship with Bluestone; and that he had never heard of Bluestone until he began receiving the faxes. An affidavit in support of the motion was also submitted by Stern's secretary, stating that she never authorized Bluestone to send faxes to Stern's office and that she never had a business relationship with Bluestone. Stern's former subtenant also submitted an affidavit stating that he never authorized Bluestone to transmit faxes to Stern or anyone else. In opposition to Stern's motion, Bluestone asserted that, as an attorney whose practice is primarily concerned with the representation of individuals who have been harmed by legal malpractice, and who does not defend attorneys who are accused of committing legal malpractice, the Attorney Malpractice Report was not a solicitation for his services. Rather, while he is not opposed to referrals from other attorneys and does enjoy the enhancement of his reputation that comes from being the author of the Report, it was never intended to be an advertisement and it was not an advertisement. Bluestone argued that the Attorney Malpractice Report is a fully protected non-commercial exercise of his First Amendment right of free speech.
A motion judge found that Bluestone's faxes were prohibited advertisements within the meaning of the TCPA and granted partial summary judgment to Stern as to liability. The judge also found that, because Bluestone had been sued previously for violating the same statute, he was undoubtedly aware of the TCPA's proscriptions and should have known that his conduct violated the statute. Thus, the judge found, as a matter of law, that Bluestone willfully and knowingly violated the TCPA and awarded Stern treble damages. Bluestone appealed.
On appeal, the Court sided with Stern that Bluestone had advertised in violation of the TCPA. It held that:
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.
The Court concluded that Bluestone's motive in sending the faxes was not a factor in determining whether the faxes were advertisements. According to the Court, simply looking at the items in the context in which they were sent was sufficient to establish them to be advertisements. Moreover, the Court concluded that the award of treble damages was appropriate given that Bluestone was fully aware of the TCPA's proscriptions. Stern v. Bluestone, 47 A.D.3d 576, 850 N.Y.S.2d 90. (N.Y.A.D 1 Dept. January 31, 2008).
