Von Wiegen, Matter of

• Decision Date: 16 October 1984
• Citation: 481 N.Y.S.2d 40,63 N.Y.2d 163,470 N.E.2d 838
• Parties: , 470 N.E.2d 838, 53 USLW 2233 In the Matter of Eric P. VON WIEGEN, an Attorney, Appellant. Committee on Professional Standards, Third Judicial Department, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 40

481 N.Y.S.2d 40

63 N.Y.2d 163, 470 N.E.2d 838, 53 USLW 2233

In the Matter of Eric P. VON WIEGEN, an Attorney, Appellant.

Committee on Professional Standards, Third Judicial

Department, Respondent.

Court of Appeals of New York.

Oct. 16, 1984.

Robert M. Cohen, Ballston Lake, and Arthur L. Rosen, Troy, for appellant

Daniel J. Persing, Troy, and George B. Burke, Albany, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

This is a lawyer disciplinary proceeding which has resulted in respondent's suspension from the practice of law for six months because he solicited by mail the victims and families of the 250 persons injured when the sky-walk collapsed at the Hyatt Regency Hotel in Kansas City, Missouri, in July, 1981, he did so by letters that were false and misleading and because, in unrelated advertising, he used a trade name. Respondent contends that the prohibition of direct mail solicitation abridges his constitutional right to free speech (Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810; Matter of Koffler, 51 N.Y.2d 140, 432 N.Y.S.2d 140, 412 N.E.2d 927; see, generally, Note, Direct Mail Solicitation by Attorneys: Bates to R.M.J., 33 Syracuse L.Rev. 1041; Goldblum, Regulation of Lawyer Advertising in New York, 56 N.Y.S.B.J., No. 4, May, 1984, p. 6), that the evidence before the referee did not establish deception, that the motto he used did not constitute a trade name and that the penalty was excessive.

Respondent graduated from law school in 1974, was admitted to the Michigan Bar and practiced law there for approximately six years before moving to New York. In 1980 he was admitted to practice in this State and he presently maintains his law office in Schenectady. His practice consists principally of personal injury cases.

On April 20, 1982 petitioner, Committee on Professional Standards, Third Judicial Department, commenced a disciplinary proceeding against respondent by filing charges alleging that he, in violation of section 479 of the Judiciary Law and the Code of Professional Responsibility, (I) engaged in direct mail solicitation of the victims and/or their families of the Hyatt Regency Hotel disaster in Kansas City, Missouri (DR 2-103 ); (II) employed deception and misrepresentation in the letters sent to the accident victims by indicating that a litigation coordinating committee had been formed to assist the victims and that many victims or their families had retained respondent (DR 1-102 DR 2-101 ); and (III), in an unrelated incident, hired two persons to place flyers advertising respondent's services on automobile windshields in a shopping mall in Schenectady which contained misleading statements and a prohibited trade name--"The Country Lawyer" (DR 2-101 DR 2-102 ). (The letters and the flyer are annexed as an appendix to this opinion.) After a hearing the referee rejected charges I and III in their entirety and sustained charge II insofar as it alleged that the references in the solicitation letter to a committee and to the fact that many victims had retained respondent were misleading. ¹ The referee rejected charge I, concluding that under this court's ruling in Matter of Koffler, 51 N.Y.2d 140, 432 N.Y.S.2d 872, 412 N.E.2d 927 supra, respondent's solicitation could be regulated but not proscribed by statute or disciplinary rule.

The Appellate Division, 101 A.D.2d 627, 474 N.Y.S.2d 147, confirmed the referee's report with respect to the finding of deception contained in charge III, confirmed portions of charge III, ² and otherwise disaffirmed it. In sustaining charge I, the Appellate Division ruled that a prohibition on direct mail solicitation of accident victims constituted a restriction on the time, place and manner of speech, rather than its content (see Matter of Greene, 54 N.Y.2d 118, 120-121, 444 N.Y.S.2d 883, 429 N.E.2d 390, cert. den. sub nom. Greene v. Grievance Committee, 455 U.S. 1035, 102 S.Ct. 1738, 72 L.Ed.2d 153), and noted that such a restriction is supportable if reasonable and related to a substantial State interest (citing Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64). The court found the ban permissible here because it "related to and supports a variety of substantial State interests, including avoidance of the demoralizing effect such solicitation might have on the profession and the unseemly rivalry reminiscent of 'ambulance chasing' it might generate * * * avoidance of stirring up litigation and vexatious conduct * * * and prevention of invasions of privacy" (101 A.D.2d 627, 628, 474 N.Y.S.2d 147). Addressing charge II, the court found that proof adduced at the hearing established by a fair preponderance of the evidence that two statements in the letters were deceptive and misleading. In sustaining the trade name count of charge III, it concluded that the use of the phrase "The Country Lawyer" in the flyers violated DR 2-102(B). The court suspended respondent We agree generally with the determinations of the referee and we therefore modify the order of the Appellate Division by dismissing charges I and III and by affirming the determination on charge II.

from the practice of law for six months.

I

The primary issue on appeal concerns respondent's right to solicit accident victims by mail. It can be analyzed in two ways, by comparing the cases principally relied on by the Appellate Division and the referee and also by employing a structured constitutional analysis (see Central Hudson Gas & Elec. v. Public Serv. Comm., 447 U.S. 557, 565, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341) as we did in Koffler.

The Appellate Division, in sustaining charge I and banning direct mail advertising in personal injury cases, relied on Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444. In Ohralik the Supreme Court held that the potential for fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct was so likely in the context of in-person solicitation of accident victims that a ban on such conduct was constitutionally justified. In Matter of Koffler, 51 N.Y.2d 140, 432 N.Y.S.2d 872, 412 N.E.2d 927, supra, however, we found most of those concerns absent in the direct mail solicitation of real estate clients and held that the mail solicitation employed in that case was constitutionally protected commercial speech which the State may regulate but not proscribe. The question before us now is whether respondent's solicitation of accident victims and their families by mail implicates the substantial State interests identified in Ohralik, 436 U.S. 447, 462, 98 S.Ct. 1912, 1921, supra in a way which distinguishes it from Matter of Koffler and justifies proscription of such mailings. ³ Stated another way, is there something unique about lawyer mailings to accident victims as distinguished from similar mailings to prospective real estate clients which requires a result different from that reached in the Koffler case? From its analysis of Ohralik, the Appellate Division concluded that there was, that mail solicitation of accident victims was similar to in-person solicitation of them and posed a significant threat to the victims' ability to reach a reasoned and informed decision regarding the need for legal representation. That determination suggests that the validity of mailing restrictions depends upon the nature of the legal problem involved, whether it concerns torts or real estate, or some other area of the law.

We view the present case as closer to Koffler, basing our decision on the distinction between mail solicitation and in-person solicitation of accident victims because the latter permits the exertion of subtle pressure and often demands an immediate response without providing an opportunity for comparison and reflection. The Supreme Court's decision in Ohralik was based on those factors, the elements of intimidation and duress (see Ohralik, 436 U.S. 447, 462-463, 464-466, 98 S.Ct. 1912, 1921-1923, supra ). They are not present in the case of mail solicitation and, as with the real estate client in Koffler, the process of decision-making may actually be aided by information contained in the mailing. For the reasons which follow, we find the restriction here is not related to the time, place and manner of expression but is content-based, and employing the analysis set forth by the Supreme Court in Central Hudson Gas & Elec. v. Public Serv. Comm., 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, supra, we hold the blanket prohibition of mail solicitation of accident victims violates respondent's rights of expression under the First and Fourteenth Amendments of the United States Constitution.

It is now familiar law that the Constitution protects from unwarranted governmental regulation, commercial expression, i.e., expression which relates solely to the economic interests of the speaker and his audience, because commercial expression not only serves the economic interest of the speaker but furthers a societal interest in the fullest possible dissemination of information (Central Hudson Gas & Elec. v. Public Serv. Comm., 447 U.S. 557, 561-562, 100 S.Ct. 2343, 2348-2349, supra; Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 762, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346; Bates v. State Bar of Ariz., 433 U.S. 350, 363-364, 97 S.Ct. 2691, 2698-2699, 53 L.Ed.2d 810, supra; see, also, Tribe, American Constitutional Law, § 12-15, pp 651-656). It is subject to a lesser degree of protection than other traditionally protected types of speech but it does, nevertheless, come within the ambit of the First and Fourteenth Amendments (Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918, supra ). Lawyer advertising represents commercial expression (Bates v. State Bar of Ariz., supra ). Thus, although the State, through its professional disciplinary committees, possesses broad power to regulate the legal profession because lawyers are essential to the primary...