Friday, June 12, 2009
A New York solo practitioner sued another New York solo practitioner under the Telephone Consumer Protection Act after receiving 14 unsolicited fax communications. The sender specializes in bringing attorney malpractice actions. The New York Supreme Court had granted summary judgment as to liability on a count of the cause of action, which was affirmed by the Appellate Division.
The New York Court of Appeals reversed the grant of summary judgment, based on its conclusion that the 14 faxes were "informational messages" rather than "unsolicited advertisements." The sending attorney "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 [the sending attorney] may have devised a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, 'an incidental advertisement' of his services, which 'does not convert the entire communication into an advertisement'." (Mike Frisch)