Koffler v. Joint Bar Ass'n

• Decision Date: 21 October 1980
• Citation: 51 N.Y.2d 140,412 N.E.2d 927,432 N.Y.S.2d 872
• Parties: , 412 N.E.2d 927 In the Matter of Alfred S. KOFFLER and William H. Harrison, Jr., Attorneys, Appellants. v. JOINT BAR ASSOCIATION, Grievance Committee for the Tenth Judicial District, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 872

432 N.Y.S.2d 872

51 N.Y.2d 140, 412 N.E.2d 927

In the Matter of Alfred S. KOFFLER and William H. Harrison Jr., Attorneys, Appellants. v. JOINT BAR ASSOCIATION, Grievance Committee for the Tenth Judicial District, Respondent.

Court of Appeals of New York.

Oct. 21, 1980.

Melvin L. Wulf, New York City, and Thomas P. Kerrigan, Brooklyn, for appellants

Francis F. Doran, James R. Augenthaler and Grace D. Moran, Mineola, for respondent.

Frederic Block, Smithtown, Richard C. Cahn, Huntington, and Bernard J. Reilly, Brooklyn, for New York State Bar Ass'n, amicus curiae.

David C. Vladeck and Alan B. Morrison, Washington, D. C., for New York Public Interest Research Group and others, amici curiae.

OPINION OF THE COURT

MEYER, Judge.

Direct mail solicitation of potential clients by lawyers is constitutionally protected commercial speech which may be regulated but not proscribed. The Appellate Division's contrary holding, predicated upon an artificial distinction between solicitation and advertising, should, therefore, be reversed, without costs.

The appeal comes before us as of right, on constitutional grounds. It is from an order of the Appellate Division, made in a disciplinary proceeding, which confirmed the report of the referee that respondents-appellants Koffler and Harrison (hereafter respondents) had violated section 479 of the Judiciary Law and DR 2-103(A) of the Code of Professional Responsibility, but which, finding that respondents had apparently acted in good faith, imposed no sanction. ¹

The proceeding, begun by the Joint Bar Association Grievance Committee, Tenth Judicial District (hereafter Committee), charged that respondents, in violation of section 479 of the Judiciary Law and the Code of Professional Responsibility, caused to be mailed between August 24, 1977 and October 24, 1977, to approximately 7,500 individual real property owners a letter on respondents' legal stationery which solicited the addressees to use respondents' services in connection with the sale of real property, and during the same period caused to be mailed to a number of real estate brokers a letter on respondents' legal stationery soliciting the brokers to refer clients to respondents in connection with the purchase or sale of real property. The texts of the two letters are set forth in the Appellate Division's opinion (70 A.D.2d 252, 254-255, 420 N.Y.S.2d 560) and need not be repeated here. The Appellate Division noted (id., at p. 256, 420 N.Y.S.2d 560) respondent Koffler's testimony that the results of their Newsday advertisement, reproduced as part of their letter, " 'were negligible' " and that respondents " 'felt if we could direct our advertising specifically at the person who was interested in the sale of a house,-for example, instead of just advertising in a paper with a general circulation-we might be able to get better results and do the mass production idea that we had.' " He also testified that the firm did about 200 closings at the fee stated in the letter.

By their answer and by stipulation made before the referee respondents admitted sending the letters and the text of them. The answer, however, alleged as a defense that both facially and as applied the Judiciary Law and the code violate the First and Fourteenth Amendments to the United States Constitution, that respondents acted in good faith reliance on the decision of the Supreme Court in Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 decided June 27, 1977, and that they have acted and are continuing to act in compliance with the guidelines for advertising adopted by the New York State Bar Association and approved by the Appellate Division, Second Department.

Since overbreadth analysis is not applicable to commercial speech (Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 462, n.20, 98 S.Ct. 1912, 1922, n.20, 56 L.Ed.2d 444; People v. Mobil Oil Corp., 48 N.Y.2d 192, 199, 422 N.Y.S.2d 33, 397 N.E.2d 724), respondents are limited to contesting the invalidity of the statute and code provisions as applied to them. The referee concluded that respondents had violated the Judiciary Law and DR 2-103(A) of the code because their communications constituted constitutionally unprotected solicitation rather than advertising. In so finding he made no distinction between the letter to homeowners and the letter to brokers, nor had any distinction between them been suggested by the Committee's presentation at the hearing before the referee. Confirming, the Appellate Division, without reaching the question whether all mailing to nonclients is proscribed, held the statute and DR 2-103(A) "constitutional insofar as they ban solicitation of legal business by mail as well as in person" (70 A.D.2d 252, 274, 420 N.Y.S.2d 650) but, except for a passing footnote reference to the potential conflict of interest that could be involved in the solicitation of real estate brokers to refer clients to respondents, likewise did not differentiate between the two letters. For the reasons hereafter set forth we conclude that neither statute nor code provision can constitutionally prohibit advertising of attorneys' services by direct mail addressed to potential clients. We do not, however, pass upon direct mail solicitation of clients through materials addressed to third persons, preferring to leave determination of that question, distinguishable as it is in a number of ways from direct client solicitation by letter, ² for a matter in which a more complete record has been made and there has been more extensive consideration by the Appellate Division, in which is vested primary jurisdiction in matters of discipline.

While prohibitions against solicitation of legal business by or for attorneys have ancient roots (Note, Attorney Solicitation of Clients, 7 Hofstra LR 755, 757), their constitutionality has come into question only recently. The proscriptions the Committee seeks to enforce against respondents are contained in section 479 of the Judiciary Law, which read in 1977 and still 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", and section DR 2-103(A) of the Code of Professional Responsibility, which as it read at the time respondents' letter to homeowners was circulated, provided: "A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer." ³ Since to recommend one's self for employment is to solicit employment, the two provisions are, at least in the context of the present proceeding, coextensive.

We disagree, however, with the Appellate Division's conclusion that the solicitation that those provisions condemn can be differentiated from constitutionally protected commercial speech simply by categorizing the former as solicitation and the latter as advertising. The Supreme Court has said so in so many words, overruling in N. A. A. C. P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405, the contention that "solicitation" is wholly outside the area of First Amendment protection, and declaring in Bigelow v. Virginia, 421 U.S. 809, 826, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 that: "Regardless of the particular label asserted by the State-whether it calls speech 'commercial' or 'commercial advertising' or 'solicitation'-a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation." (See, also, Matter of Madsen, 68 Ill.2d 472, 478, 12 Ill.Dec. 576, 370 N.E.2d 199).

Semantically, of course, there is a difference. Not all solicitation is advertising, though all advertising either implicitly or explicitly involves solicitation. To "solicit" means to move to action, to endeavor to obtain by asking, and implies personal petition to a particular individual to do a particular thing (Webster's Third New International Dictionary, p. 2169; Black's Law Dictionary (5th ed), pp. 1248-1249), while "advertising" is the calling of information to the attention of the public, by whatever means (Webster's, p. 31; Black's, p. 50). To outlaw the use of letters, the content of which does not violate DR 2-101, addressed to those most likely to be in need of legal services, because in addition to "advertising" the nature of the service and its price the letters implicitly or explicitly suggest employment of the writer to perform those services, ignores the strong societal and individual interest in the free dissemination of truthful price information as a means of assuring informed and reliable decision making in our free enterprise system, about which both the Supreme Court (Bates v. State Bar of Ariz., 433 U.S. 350, 364, 97 S.Ct. 2691, 2699, 53 L.Ed.2d 810 supra) and we (People v. Mobil Oil Corp., 48 N.Y.2d 192, 200, 422 N.Y.S.2d 33, 397 N.E.2d 724, supra) have had occasion to comment, and can only be productive of confusion for the profession (see Freedman, Lawyers' Ethics in an Adversary System, ch. 10). To do so, moreover, is to suggest that there is necessarily something improper about an attorney's desire to earn a fee, and that there is something different about the legal profession that makes direct mail advertising improper though it would not be for other businesses or professions and though indirect forms of advertising are not improper even for the legal profession, notwithstanding the contrary indications in the writings of both the Supreme Court (Bates, supra, at pp. 368-369, 371-372, 97 S.Ct. at pp. 2701, 2702-2703; Pittsburgh Press Co. v....