Introduction
Today we look at Stern v. Lavoott Bluestone, ___ N.Y. 2d ___, slip op. (June 11, 2009), a New York Court of Appeals decision that has nothing to do with either reinsurance or arbitration law. Before you conclude that we’ve finally lost our marbles, let us explain: The decision is of critical importance to all reinsurance and arbitration attorneys subject to attorney advertising restrictions — indeed, it is important to all attorneys subject to those restrictions. The Court held that an attorney’s newsletter that was purely informational in content was not an “unsolicited advertisement” for the purposes of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, as added by Pub. L. 102-243, 105 U.S. Stat. 2394, which prohibits the dissemination of such advertisements by facsimile.
Facts
During a 16-month period, Peter Marc Stern, a solo practitioner, received 14 unsolicited facsimile communications from Andrew Lavoott Bluestone, another solo practitioner who represents plaintiffs in attorney malpractice cases. Each of the faxes, entitled “Attorney Malpractice Report,” contained a short article on a topic pertinent to attorney malpractice, and contained Bluestone’s contact information and web addresses.
In August 2005 Stern commenced an action against Bluestone in New York State court under the TCPA, which prohibits the use of “any telephone facsimile machine. . . to send an unsolicited advertisement,” 47 U.S.C. § 227(b)(1)(C), and provides a private right of action for money damages. See 47 U.S.C. § 227(b)(3). During the period Bluestone sent the faxes, the TCPA defined “unsolicited advertisement” as “any material advertising the commercial availability or quality of any products, goods, or services which is transmitted to any person without that person’s invitation or permission.” See former 47 U.S.C. § 227(a)(4). Stern sought $500 per fax as damages, contending that each was an “unsolicited advertisement” within the meaning of the TCPA. He requested that the court treble the damages because Bluestone allegedly violated the TCPA willfully and knowingly.
In December 2005 Stern moved for summary judgment on the issues of liability and willful and knowing violation of the TCPA. Bluestone did not cross-move for summary judgment, but opposed the motion, contending that his faxes were not advertisements, or, alternatively, that there was a question of fact on that score. The trial court granted the motion, concluding that the faxes “indirectly advertise[d] the commercial availability” of Bluestone’s services. The court also held that Bluestone willfully and knowingly violated the TCPA. The intermediate appellate court affirmed, with two Justices dissenting.
The Court’s Holding and Analysis
The New York Court of Appeals — New York’s highest court — reversed. The Court pointed out that, in 2006 the Federal Communications Commission (“FCC”) elaborated on what constitutes an “informational message” — as opposed to an “unsolicited advertisement” — for the purposes of the TCPA:
facsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules. An incidental adverstisement contained in such a newsletter does not convert the entire communication into an advertisement. . . Thus, a trade organization’s newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter’s primary purpose is informational, rather than to promote commercial products.
Slip op. at 4 (quoting 71 Fed. Reg. 25967, 25973 (2006), codified at 47 C.F.R. § 64.1200) (emphasis supplied by the Court).
The Court concluded that Bluestone’s faxes were “informational message[s]” within the meaning of the FCC regulation and therefore were not “unsolicited advertisement[s]” within the meaning of the TCPA:
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. 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.’
Slip op. at 4.
In today’s world of attorney-advertising restrictions, the Bluestone decision provides needed clarity as to whether newsletters, blogs, LinkedIn or Twitter posts, and other writings that are principally informational in nature are prohibited “solictitations” or otherwise subject to attorney advertising restrictions. If an attorney newsletter or other article transmitted to another person via fax does not violate the TCPA, then it should not be prohibited under attorney ethical rules concerning solicitation of legal business or otherwise subject to attorney advertising restrictions.
One way that lawyers and other professionals can indirectly demonstrate their skills, knowledge and prowess to the general public is by writing informational articles, blog posts and the like. These writings serve the public good in that they are often read by other professionals, students, governmental organizations and the public at large, and are often a useful source of information, ideas and opinions on a variety of topics. To quell this discourse would not only be unfair to attorneys, but would deprive the public of an important source of pertinent information. Time will tell us the extent to which the Bluestone decision will influence the law on attorney advertising.
On a related note, kudos to Scott Greenfield, a solo practitioner who handled the case for Bluestone. Carolyn Elefant’s widely-read and highly-recommended blog, My Shingle, covered the case here. Ms. Elefant’s blog post features an interview of Mr. Greenfield and offers further commentary and insight.
Tags: Attorney Advertising, Attorney Ethics, Carolyn Elefant, Ethical Rules, FCC, Federal Communications Commission, My Shingle, New York Court of Appeals, Scott Greenfield, Stern v. Bluestone, TCPA, Telephone Consumer Protection Act of 1991
