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Blawgers Eye Ruling as Protection from Advertising Proscription

By Matthew A. Goldberg, Litigation News Associate Editor – July 23, 2009

The New York Court of Appeals decision in Stern v. Bluestone, interpreting a federal law that prohibits “junk faxes,” is being eyed as potential precedent to shield “blawgers” from prohibitions against legal advertising.


Given its focus on faxes, Stern might not seem like a good candidate for igniting the so-called blogosphere. But the court reversed what blawgers—as legal bloggers have come to be known—had considered a highly controversial decision of the intermediate-level appellate court; a decision they viewed as potentially dangerous for blawgers and the legal writing community in general.


Legal Advertising
Stern largely turned on the meaning of the word “advertisement,” as used in the Junk Fax Protection Act of 2005. Andrew Bluestone, a New York attorney who specializes in attorney malpractice cases, wrote and disseminated, by unsolicited faxes, a one-page document called the “Attorney Malpractice Report.” Peter Marc Stern, a solo practitioner, received 14 of these faxes and sued, claiming that Bluestone had violated both the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005.


Bluestone’s faxes contained information about legal malpractice, including, for example, the most common causes of malpractice. The faxes also contained the name of Bluestone’s firm and his contact information. As a result, the trial court held that the faxes were legal advertisements. The Appellate Division agreed, finding that the faxes indirectly advertised the availability and quality of Bluestone’s legal services.


Implications for Blawgers
Blawgers looked at the decision and worried whether their blogs—or any published legal writing for that matter—could withstand the test Bluestone’s faxes had failed. At the time, Eugene Volokh, Los Angeles, a UCLA law professor and founder of the popular blog The Volokh Conspiracy, wrote on his blog that the decision was troubling in that it could signal a willingness on the part of courts or bar associations to define legal advertising extremely broadly, perhaps impinging on First Amendment rights in the process.


Volokh wrote that the “fax items were pretty similar to blog posts,” leading him to wonder whether a legal blog might be considered commercial speech for First Amendment purposes, subject to greater regulation than fully protected speech.


However, in overturning the intermediate court’s opinion, the New York Court of Appeals ruled that the unsolicited faxes were basically informational, not promotional, in nature and did not violate federal laws and rules against improper solicitations.


The Court of Appeals “ultimately got it right,” opines George Freeman, New York, cochair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee.


“Informative speech should not be curtailed even if there is some lawyer advertising going on,” says Freeman.


“Lawyers writing about what they are experts on should not make that writing ‘commercial speech,’ even if the writing is implicitly self-promotional as well as being socially valuable,” agrees Volokh. “Bar associations should recognize that [this] is not commercial speech and, thus, not regulable,” he says.


Volokh predicts that “courts will likely take that view as well,” as did the Court of Appeals in Stern.


Guidelines for Blawgers
There are reasons to temper the enthusiasm with which blawgers greeted the Stern opinion. The opinion should not give legal writers the sense that they now can do whatever they want with their writing without the specter of lawyer-advertising regulation rearing its head, cautions Michele D. Hangley, Philadelphia, cochair of the Section’s Ethics and Professionalism Committee.


Bar associations can still impose restrictions on what lawyers write, Hangley says, even if the writing is considered fully protected speech. “It is too early to recommend a bright line rule for determining what is or is not lawyer advertising,” she says. “The lines are still fuzzy and this kind of speech is difficult to regulate.”


Some bright lines can be drawn, however. For example, “law firm websites are considered advertising,” says Peter R. Jarvis, Portland, OR, a member of the Section’s Ethics and Professionalism Committee and a past president of the Association of Professional Responsibility Lawyers. On the other end of the spectrum, “it is very unlikely that a court would hold that a law review article was lawyer advertising,” says Hangley.


So what should blawgers and other legal writers do? Jarvis recommends that “everything lawyers do to potentially solicit clients, even indirectly, should be seen through the prism of state bar lawyer advertising rules.” Volokh warns that, despite the recent decision in Stern, “the matter is still not completely clear, so it’s hard to be sure what will happen as to any particular communication if a bar association is aggressive.”


“Almost everything lawyers do—even attending a cocktail party—could, under some readings, be seen as promoting a lawyer’s professional self-interest,” notes Hangley.


Her advice? “Be cautious, tell the truth, and don’t engage in behavior that reflects poorly on the profession.”


Keywords: Court of Appeals, advertising, blogging


 

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