Greene v. Grievance Committee for Ninth Judicial Dist.

• Decision Date: 29 October 1981
• Citation: 429 N.E.2d 390,444 N.Y.S.2d 883,54 N.Y.2d 118
• Parties: , 429 N.E.2d 390 In the Matter of Alan I. GREENE, an Attorney (Admitted to Practice as Alan Ira Green), Appellant. GRIEVANCE COMMITTEE FOR the NINTH JUDICIAL DISTRICT, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 883

444 N.Y.S.2d 883

54 N.Y.2d 118, 429 N.E.2d 390

In the Matter of Alan I. GREENE, an Attorney (Admitted to Practice as Alan Ira Green), Appellant GRIEVANCE COMMITTEE FOR the NINTH JUDICIAL DISTRICT, Respondent.

Court of Appeals of New York.

Oct. 29, 1981.

Jeremiah S. Gutman, New York City, for appellant

Richard E. Grayson, White Plains, for respondent.

Richard G. Collins, Buffalo, for Four Anonymous Attorneys, amici curiae.

OPINION OF THE COURT

MEYER, Judge.

To the extent that section 479 of the Judiciary Law and DR2-103(A) of the Code of Professional Responsibility proscribe advertising of attorneys' services by direct mail addressed to real estate brokers, those provisions regulate the manner rather than the content of commercial speech and, the regulations being reasonable and the State having a substantial interest in the protection of clients against potential conflict of interest, are constitutional regulations of such speech. Thus, we answer so much of the question left open in Matter of Koffler, 51 N.Y.2d 140, 145, 432 N.Y.S.2d 872, 412 N.E.2d 927, cert. den. 450 U.S. 1026, 101 S.Ct. 1733, 68 L.Ed.2d 221, concerning third-person mailings as relates to mailings addressed to real estate brokers by holding regulations proscribing such mailings constitutional. The order of the Appellate Division, 78 A.D.2d 131, 433 N.Y.S.2d 853, should, therefore, be affirmed, without costs.

Respondent Greene was admitted to the practice of law in New York in 1960. He admitted in his answer to the disciplinary proceeding brought against him by the Grievance Committee for the Ninth Judicial District that "in or about August, 1978 and October, 1978, Respondent caused to be prepared and caused to be mailed approximately one thousand direct mail fliers to real estate brokers in Westchester County and portions of Putnam County" and concedes in his brief before us that he was "hoping by his mailings to move the recipients to remember his availability should the occasion arise when a buyer or seller sought a reference to an attorney in a real estate transaction." The flier read in pertinent part:

"ALAN I. GREENE offers your client full legal representation on any and all property transactions for just $335. Legal coverage begins with contract and continues through to closing. With 18 years experience, the office of ALAN I. GREENE is fully prepared to expedite all closings and offer competent advice to the buyer and/or seller. Your real estate office will be afforded our full cooperation. With just two hours notice, a contract and all legal documents can be prepared.

"By recommending the services of ALAN I. GREENE, you, the realtor, will save your client time and money--one of the main reasons they called on you!"

Testifying before the Referee, respondent stated that he got no business from the brokers to whom the flier was sent, indeed, that he had gotten a negative response from them.

The Referee, treating the issue as one of law to be decided on the basis of the undisputed facts, found respondent in violation of section 479 of the Judiciary Law and DR2-103(A) of the Code of Professional Responsibility, but noted in his report that the fliers had been sent prior to the Appellate Division's decision in Matter of Koffler, 70 A.D.2d 252, 420 N.Y.S.2d 560, and were mailed in reliance on Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, and that in Koffler the Appellate Division had imposed no sanction.

Petitioner moved for confirmation of the Referee's report and the disciplining of respondent. Respondent likewise moved "for an order confirming and adopting the report" but asked that he, as had been the attorneys in Koffler, be exonerated. The Appellate Division, noting our reversal in Koffler and reservation of the third-party mailing question, found that the fliers "directly solicited the real estate brokers to refer individuals to the respondent to use the respondent's legal services in connection with the sale or purchase of real property" as alleged in the petition, and held such a mailing proscribed and not constitutionally protected, but imposed no sanction. The appeal is before us on constitutional grounds (CPLR 5601, subd. par. 1).

As we noted in Koffler, 51 N.Y.2d, at p. 143, n.1, 432 N.Y.S.2d 872, 412 N.E.2d 927, the absence of sanction does not affect respondent's right of appeal from the confirmed finding of a violation. Petitioner argues, however, that the appeal should be dismissed as moot because respondent was on April 9, 1981 suspended from the practice of law, on the basis of incapacity, and for lack of aggrievement in view of respondent's motion to confirm. Respondent suggests that the record is not appropriate for decision, that the State interest sought to be protected is not sufficiently defined, and that his mailing is not in-person solicitation such as was condemned by the Supreme Court in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444. In an amici brief filed on behalf of four attorneys against whom similar charges are pending in the Third Department, it is argued that what is regulated in this instance is not manner of distribution but content. We affirm, though upon somewhat different reasoning than that of the Appellate Division.

I

The arguments for dismissal require little comment. For the same reason that the absence of sanction does not foreclose appeal from the finding of violation, it cannot be said that respondent was not aggrieved by the Appellate Division's order. Though his motion paper could have been more carefully worded, it clearly asked for "exoneration", which is inconsistent with the legal conclusion suggested by the Referee. The reference was to hear and report and the facts being undisputed, we construe the motion paper to have requested confirmation of the factual conclusions of the Referee, but not of his conclusion of law.

Nor does respondent's suspension for incapacity after the Appellate Division decision moot the question, for that suspension, though indefinite in time, was made because of respondent's inability to participate in a formal disciplinary hearing. Though no sanction has been imposed in the instant proceeding, the finding of violation is a professional stigma that may be considered in determining the discipline to be imposed after formal hearing on the new charges should respondent recover from his incapacity and the result of such a hearing be against him. Even if that were not so, the pendency of four other similar proceedings against amici suggests that the controversy is of a recurring character and should be considered by us rather than dismissed for mootness.

II

The proscriptions, the constitutionality of which is in issue, are found in section 479 of the Judiciary Law and DR2-103(A) of the Code of Professional Responsibility. The former reads: "It shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services, or to make it a business so to solicit or procure such business, retainers or agreements". The latter, as amended on April 29, 1978, provides: "A lawyer shall not solicit employment as a private practitioner of himself or herself, a partner or an associate to ¹ a person who has not sought advice regarding employment of a lawyer in violation of any statute or court rule. Actions permitted by DR 2-104 and advertising in accordance with DR 2-101 shall not be deemed solicitation in violation of this provision." ² DR 2-104(C) permits a lawyer to "accept employment which results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services", but the section is not otherwise germane.

The effect of our Koffler decision and of the Supreme Court decisions referred to in that opinion and in this is to leave the rule declared by the Legislature in section 479 of the Judiciary Law, free to operate in areas not affecting constitutionally free speech (Belli v. State Bar of Cal., 10 Cal.3d 824, 112 Cal.Rptr. 527, 519 P.2d 575, application for stay den. 416 U.S. 965, 94 S.Ct. 1986, 40 L.Ed.2d 555). Though amendment of the section might clarify the intention of the Legislature as a source, co-ordinately with the judiciary, of the public policy governing the conduct of lawyers, the absence of such amendment leaves no vacuum. The section remains effective except as constitutionally proscribed.

The Code of Professional Responsibility is, however, an enactment of the New York State Bar Association rather than the Legislature or any court. Its provisions have been incorporated by reference in the rule defining professional misconduct (22 NYCRR 603.2, 691.2, 806.2, 1022.17) adopted by each of the Appellate Divisions pursuant to statute (former section 216 of the Judiciary Law) and continued in effect by section 13 of chapter 156 of the Laws of 1978. The specific provisions of the code dealing with advertising have also been adopted as a rule by each of the Appellate Divisions, with the minor change referred to in footnote 2 above (22 NYCRR 603.22, 691.22, 806.15, 1022.16). But the code cannot, either directly or through incorporation in a court rule, amend or limit a statute adopted by the Legislature (People v. La Carrubba, 46 N.Y.2d 658, 663, 416 N.Y.S.2d 203, 389 N.E.2d 799; see Matter of Weinstock, 40 N.Y.2d 1, 6, 386 N.Y.S.2d 1, 351 N.E.2d 647). Thus, even if DR2-104 were broad enough in language to be deemed to authorize third-party direct mail generally (which, in our view, it is not), it would not limit the effect of section 479 of the Judiciary Law, as a bar to such advertising. In light of that fact and of...