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What a $21,000 Award Against a Lawyer for Unsolicited Faxes Might Mean for Bloggers

Chances are, most lawyers paid little attention to this news story on a recent New York Appellate Division decision, Stern v. Bluestone, upholding a $21,000 award against an attorney who faxed unsolicited law reports on legal malpractice issues to other lawyers.  After all, in 2008, fax machines are going the way of the typewriter, with most faxed lawyer reports now replaced by electronic newsletters, or even blogs.   But if you thought that Stern v. Bluestone only applies to faxes, you'd be wrong -- because the majority's reasoning may have serious, adverse implications for lawyers who blog.

In Stern v. Bluestone, attorney Peter Marc Stern sued Andrew Lavoott Bluestone for allegedly faxing fourteen unsolicited "Attorney Malpractice Reports" to a fax machine in Stern's office between 2003 and 2005, in violation of the Telephone Consumer Protection Act of 1991 (TCPA).  The TCPA provides in relevant part that "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."  The TCPA includes certain exceptions, e.g., where the recipient voluntarily made his fax number available for transmissions or has an established business relationship with the sender.  But other than satisfying one of these exceptions, a sender can evade the TCPA by showing that the faxed transmission is unsolicited, or is not an advertisement.

By a 3-2 majority, the Appellate Division concluded that Bluestone's Attorney Malpractice Reports met the definition of "advertisement" under the TCPA:

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.... Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services (id. at 8, [finding that the sender's identity, motives, purposes, and intentions are relevant to whether the fax was merely "information" or "advertising"]).

The dissent disagreed, asserting:

The faxes sent by defendant to plaintiff seek to speak to legal issues involving attorney malpractice; not once by its terms does it propose a commercial transaction of any kind. The fact that its author is a lawyer who specializes in this field does not have the effect of converting what would otherwise be fully protected speech under the Constitution to an advertisement that promotes the availability of the sender's services. Without a doubt, there may well be an incidental commercial benefit to defendant from the publication of these pieces - and that fact is obviously relevant in determining if under all of the circumstances the material in question is an advertisement as opposed to a noncommercial publication. However, this is a question that cannot be resolved as a matter of law on the facts as presented.

Though Stern v. Bluestone deals only with faxed transmissions under the TCPA, the content provided by Bluestone's Attorney Malpractice Reports sound very much like that delivered in law blogs (and perhaps not surprisingly, Bluestone now delivers content at the New York Attorney Malpractice Blog).  So I asked Scott Greenfield who represented Bluestone (and who reported on the case at his blog, Simple Justice to comment on the implications of the decision for bloggers.  Here's his response:

As New York is busy trying to revamp its lawyer advertising rules, the majority's rationale brings essentially every writing within the scope of advertising, commercial solicitation, despite the total absence of anything in the content to suggest it.  Indeed, the rationale would cover articles written for scholarly journals if the author put her name to them and received no compensation.  The breadth of this decision is shocking, and there is no indication that the majority recognized the potential damage its loosely conceived decision could cause.

While the delivery mechanism is obviously different, this bodes poorly for blogging since it implicates attorney advertising rules, and hence ethical proscriptions, going forward.  This could prove disastrous given that blogs cross jurisdictions.  Restrictive parochial advertising regulations could have a harsh impact for Biglaw and lawyers with multistate practices if even scholarly posts with an attorney or firm identified are defined as commercial solicitations.  Since New York, and specifically the First Department covering Manhattan, involves essentially every major law firm in the United States, the implications of this decision are staggering for the future of blogging.

Greenfield plans to appeal the decision.  However, in the interim, regardless of whether you actually still fax, you need to know the facts of Stern v. Bluestone -- because the case may lay the groundwork for regulation of your firm's e-newsletter or blogs by the bar.  And that's an unfortunate fact for lawyers. 

Posted by Carolyn Elefant on February 4, 2008 at 04:17 PM | Permalink | Comments (4)


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