ALBANY – Unsolicited faxes distributed by a lawyer specializing in attorney malpractice cases were basically informational, not promotional, in nature and did not violate federal laws and rules against improper solicitations, the Court of Appeals ruled yesterday in Stern v. Bluestone, 87.
The judges unanimously overturned an Appellate Division, First Department, ruling that the 14 faxes attorney Andrew Lavoott Bluestone sent to another solo practitioner, Peter Marc Stern, violated the Telephone Consumer Protection Act of 1991 or the Junk Fax Prevention Act of 2005.
When amending its rules in 2006 to implement the two federal acts, the Federal Communications Commission stated that facsimile communications that contain “only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited.” In addition, the FCC held that an “incidental advertisement” contained in such transmissions “does not convert the entire communication into an advertisement.”
The Court of Appeals ruled that Mr. Bluestone’s faxes, which he titled “Attorney Malpractice Report,” fell within the FCC’s definition of an “informational message.”
“In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products,” the Court held in a memorandum ruling. “To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, ‘[a]n incidental advertisement’ of his services, which ‘does not convert the entire communication into an advertisement.’”
Mr. Bluestone sent the faxes between November 2003 and March 2005.
In addition to containing short essays about attorney malpractice, the faxes also had information about fee disputes with clients, the elements of professional malpractice and common causes of attorney malpractice litigation.
Mr. Bluestone argued that other than containing his name, address, Web site and contact information, the faxes carried no language promoting his work as an attorney. They were written to inform recipients about legal malpractice issues, he contended.
Yesterday’s ruling reversed the 3-2 finding by a First Department panel in Stern v. Bluestone, 47 AD3d 576 (2008), that the faxes “indirectly proposed a commercial transaction” by encouraging recipients to avail themselves of the attorney’s services ( NYLJ, Feb. 4, 2008). That decision, in turn, had upheld Supreme Court Justice Jane S. Solomon’s finding that the unsolicited distribution of Mr. Bluestone’s “Attorney Malpractice Report” violated the Telephone Consumer Protection Act ( NYLJ, Sept. 6, 2006).
Mr. Stern was awarded $21,000 under the Telephone Consumer Protection Act, which provides for a $500 fine for each improperly transmitted unsolicited fax, plus treble damages.
Mr. Bluestone’s attorney, Scott H. Greenfield, said in an interview that the Court of Appeals’ ruling is an important one for lawyers.
“It establishes that they, too, have a First Amendment right to speech instead of being branded as advertisers,” Mr. Greenfield said.
The Appellate Division’s decision had “terrible implications” for attorneys by making them subject to ethical proscriptions when blogging, writing articles for newspapers and engaging in other forms of free speech, according to Mr. Greenfield.
Mr. Bluestone has not sent out faxes for a few years, Mr. Greenfield said, but he maintains the New York Attorney Malpractice Blog. Mr. Bluestone also has written for the New York Law Journal on legal malpractice issues.
Brian L. Bromberg represented Mr. Stern.
Neither Mr. Bromberg nor Mr. Stern returned calls seeking comment.