A Manhattan judge has ruled that a lawyer's faxed advisories about legal malpractice issues and cases are prohibited "unsolicited advertisements" because they indirectly highlight his availability to represent clients in such matters.
Until last year, Manhattan solo practitioner Andrew Lavoott Bluestone wrote an "Attorney Malpractice Report" that he sent unsolicited to several lawyers whose fax numbers were listed in the New York Lawyers' Diary and Manual.
Bluestone specializes in legal malpractice representations and has written articles on the subject for the New York Law Journal.
One of the fax recipients, Peter Marc Stern, sued Bluestone in Manhattan Supreme Court last year on the ground that the advisories violated the federal Telephone Consumer Protection Act, which bans sending unsolicited ads to fax machines.
Bluestone responded that the faxes were not intended to advertise his practice but to educate and inform the legal community about legal malpractice issues. He noted the faxes contained no language touting him or his work and only contained his name, address, Web site and contact information.
But Supreme Court Justice Jane S. Solomon said that was enough.
"Although 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," she said in an Aug. 25 decision, Stern v. Bluestone, 111895/05.
"[B]y including the name of his law firm and contact information, Bluestone indirectly proposes a commercial transaction," the judge continued.
She granted summary judgment to Stern on the issue of liability under the act, with trial to proceed solely on the issue of damages. Stern could not be reached for comment.
In her decision, Solomon admonished Bluestone, noting that she had previously granted summary judgment against him in a similar 2004 suit brought by another lawyer who received faxes from Bluestone.
In Antollino v. LaSalle Services, 116629/03, the judge also rejected Bluestone's argument that his faxes were not sent for advertising purposes.
"Common sense however indicates that there is no other purpose for them," she wrote at the time.
She cited the earlier decision in ruling that Bluestone "willfully and knowingly" violated the act when he faxed Stern. The statute specifies minimum damages of $500 per fax, with treble damages available in cases of willful conduct. Stern claims he received 14 faxes from Bluestone between November 2003 and March 2005.
Bluestone said Tuesday he had altered his faxes considerably since Solomon's earlier decision. At that time, his advisories also had stated that he concentrated in attorney malpractice litigation and that inquiries were welcome. He removed that language, leaving only his name and contact information.
"She's now ruled that any communication by fax that has a lawyer's name or address on it is an advertisement," he said. "I don't see how that can be."
Bluestone said the judge had stretched statutory language in order to label his faxes "indirect" ads.
"Everything's in some sense an advertisement," he said. "If I put on a suit to go to work instead of shorts, isn't that an advertisement that I'm a serious professional?"
The main purpose of the faxes, Bluestone said, was to spark conversation throughout the legal community on issues of professional liability. When he first started sending the faxes, he said, it seemed a "cutting-edge way of disseminating information."
He stopped last year after discovering an even more cutting-edge method of spreading the word: He launched a legal malpractice blog last June.
Brian L. Bromberg represented Stern. Scott N. Greenfield represented Bluestone.
Attorney Magazine
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