- New York Court Holds Attorneys Who Send Faxes on Legal Issues May Be Unlawful Advertisers under TCPA
- April 8, 2008
- Law Firm: Hinshaw & Culbertson LLP - Chicago Office
Stern v. Bluestone, 47 A.D.3d 576, 850 N.Y.S.2d 90 (2008)
The periodic faxing of reports about the law was held to violate the prohibition in 42 USC § 227, the Telephone Consumer Protection Act (“TCPA”), against unsolicited fax advertising.
Attorney Andrew Bluestone regularly wrote and faxed reports on attorney malpractice to, among others, attorney Peter Stern. Prior to the present suit by Stern against Bluestone, Bluestone had been held liable under the TCPA for similar faxes which included the language “Presented by the Law offices of Andrew Lavoott Bluestone, concentrating in Attorney Malpractice Litigation . . . Inquiries are welcome.” Id. at 578.
The faxes sent to Stern were virtually identical except for the removal of the phrases “Concentrating in Attorney Malpractice Litigation,” and “Inquiries are welcome.” The issue was whether these less solicitous faxes were prohibited under the TCPA.
The TCPA generally prohibits direct or indirect advertisement of services by fax. The court noted that Bluestone’s faxes contained his contact information and referenced two web sites, which boasted of Bluestone’s malpractice specialization. Therefore, “the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone’s services.” Id. at 580. The court awarded Stern damages of $500 per fax, trebled because Bluestone, based on the prior suit, had reason to know he was violating the TCPA.
A dissenting opinion took issue with the disposition of the case on summary judgment. The dissent argued that by reading the faxes in the context of Bluestone’s occupational specialty, the majority effectively considered Bluestone’s motive in sending the faxes and that his motive was an issue of material fact.
Significance of Opinion
Although the malpractice reports concededly did not expressly reference solicitation, the court found them to be advertisements by looking at the context in which they were sent. In fact, the court was not swayed by the fact that six of the reports stated: “This is not an advertisement of the availability of services.” Id. at 577.