Remember the old days when lawyers had fax machines?  Well, a blast from the past is going to come back and bite lawyers in a place where it won’t feel good.  It seems that the First Amendment freedom of speech doesn’t apply to lawyers, at least as far as a majority in the Appellate Division, First Department is concerned.  Given the impact new attorney advertising rules could have on the digital world of lawyers, this could be a huge problem.

In a 3-2 decision in Stern v. Bluestone, the court affirmed summary judgment, holding that The New York Attorney Malpractice Report is advertising, and therefore subject to 47 U.S.C.S. §227, the Telephone Consumer Protection Act of 1991 (TCPA).  The Report was faxed several times a year to thousands of attorneys in New York, back when the fax machine was the newest techno-transmittal medium in town.  A few called to say that they didn’t want it anymore, and it was stopped.  About 50 lawyers called to ask why they didn’t get it, and they were added.  Two lawyers, separately, sued under the TCPA, which provides for a $500 per fax penalty and treble damages for deliberate abuse.

After the first complaint, Supreme Court Justice Jane Solomon granted summary judgment that it was unsolicited advertising, and indicated a few things about the Report that she found objectionable.  Rather than fight (since the changes were inconsequential to the defendant), the Attorney Malpractice Report was changed to accommodate the things noted by Justice Solomon immediately.

Then came Attorney Stern, who apparently didn’t care to receive the report.  Rather than call, or email, the defendant, he sued.  The case somehow was assigned to Judge Solomon (again) and, despite the changes to comply with her own decision, she again granted summary judgment, as well as found the conduct deliberate based upon her prior decision. 

The significance of this case has nothing to do with the manner in which it was transmitted, but something far more insidious and troubling for lawyers.  It was held to be advertising, for only commercial solicitations fall within the TCPA.  With the changes in flux for New York lawyer advertising, this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights.

Bluestone argued that this was fully protected free speech, and not commercial speech of any sort, no less advertising.  As Justice Kavanagh wrote in dissent:

This is especially true where the content of each fax is almost totally devoted to a commentary on issues involving attorney malpractice and not one contains a single word that can be fairly read as promoting the author’s law practice or inviting the recipient to employ his legal services.

And indeed, there was no dispute that this was true.  The majority, rather, 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. . . .

Contrary to the dissent’s viewpoint, 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.

Add it up:  Legal commentary with the author’s name attached, then adding “the author’s law firm and direct readers to his web sites which advertise his professional services.”  According the 3 judge majority, it “defies common-sense” to find that this is anything but lawyer advertising, and hence within the TCPA.

Now plug this into other lawyerly endeavors, such as newspaper columns (even the Outside Counsel column for the New York Law Journal), law review articles, and need I mention blogs? 

When legal commentary, with ordinary attribution in the age of the internet, becomes per se lawyer advertising, this decision will wreak havoc with what little free speech rights lawyers still possess.  Notably, the First Department thought it of huge consequence that the Attorney Malpractice Report included the defendant’s website.  What we would consider as basic to ordinary identity as an address, the 3 judge majority of Justices Marlow, Williams and Catterson, found sufficiently bizarre and consequential that it was worthy of specific note.  And you wondered whether I was blowing smoke when I asked what judges know about technology?

The case will be appealed to the Court of Appeals, as of right based upon the 3-2 split.  What was clear in oral argument before the First Department was the lack of familiarity of some justices with First Amendment issues and, even more so, the implications of clouding First Amendment rights because of a distaste with the particular delivery mechanism. 

For the sake of all lawyers who feel that they would really like to have the right of free speech granted to everyone else in the First Amendment, let’s hope that the Court of Appeals doesn’t think that the only reason a lawyer would write legal commentary is to make a buck.  Frankly, it’s a terribly sad commentary that lawyers, in the eyes of at least 3 judges in the First Department, are seen as money-grubbing pariahs, “as a matter of law.”

And here is  Eric the Turk’s take on this case.

Full Disclosure:  The defendant in this case was Andrew Lavoott Bluestone, of The New York Attorney Malpractice Blog.  And who would a lawyer who specializes in plaintiff’s legal malpractice litigation go to be his lawyer?  Why, that would be me.