Von Wiegen, Matter of
| Decision Date | 06 April 1984 |
| Citation | 101 A.D.2d 627,474 N.Y.S.2d 147 |
| Parties | In the Matter of Eric P. VON WIEGEN, Attorney, Respondent. Committee on Professional Standards, Third Judicial Department, Petitioner. |
| Court | New York Supreme Court — Appellate Division |
George B. Burke, Chief Atty., Albany, for petitioner, Gov. A.E. Smith.
Arthur L. Rosen, Troy, for respondent.
Before MAHONEY, P.J., and KANE, MAIN, CASEY and WEISS, JJ.
Petitioner moves to confirm in part and disaffirm in part a referee's report which rejected two charges of professional misconduct against respondent and sustained, in part, a third charge of professional misconduct. Respondent, an attorney admitted in this department on May 27, 1980 and who maintains a law office in the City of Schenectady, cross-moves to confirm in part and disaffirm in part the report.
The first charge against respondent alleges the direct mail solicitation of the victims and/or their families of the Hyatt Regency disaster in Kansas City, Missouri, where more than 250 people were killed or injured when two skywalks collapsed in July, 1981. We find that the referee incorrectly concluded that such direct mail solicitation of accident victims was not prohibited by either DR 2-103 (subds. [A], [C], [E] ) of the Code of Professional Responsibility or section 479 of the Judiciary Law. Prohibition of direct mail solicitation of accident victims and/or their families constitutes regulation of the time, place and manner of attorney solicitation because the prohibition is directed towards the recipient group rather than the content of the commercial speech (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). Such a restriction is permissible if reasonable and related to a substantial State interest (see Matter of R.M.J., 455 U.S. 191, 201, n. 13, 205, 102 S.Ct. 929, 936, n. 13, 939, 71 L.Ed.2d 64; Matter of Greene, supra ). A prohibition of direct mail solicitation of accident victims is 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 (see Bates v. State Bar of Ariz., 433 U.S. 350, 400, n. 10, 97 S.Ct. 2691, 2717 n. 10, 53 L.Ed.2d 810 [Powell, J., concurring in part and dissenting in part] ); avoidance of stirring up litigation and vexatious conduct (see Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460-461, 98 S.Ct. 1912, 1920-1921, 56 L.Ed.2d 444); and prevention of invasions of privacy (see Matter of Koffler, 51 N.Y.2d 140, 148-149, 432 N.Y.S.2d 872, 412 N.E.2d 927, cert den sub nom. Joint Bar Ass'n Grievance Committee v. Koffler, 450 U.S. 1026, 101 S.Ct. 1733, 68 L.Ed.2d 221). While we recognize that the Court of Appeals has found no invasion of privacy implicated by a direct mail solicitation because the recipient can throw the letter away (Matter of Koffler, supra ), an unsolicited letter from a lawyer to the victim of an accident during the vulnerable recovery period thereafter constitutes an invasion of privacy no matter how cavalierly one might believe some accident victims would treat such a notice. Indeed, direct mail solicitation of particular accident victims is closer to prohibitable in-person solicitation (see Ohralik v. Ohio State Bar Ass'n, supra ) than to the direct mail advertising permitted by the Court of Appeals in Matter of Koffler (supra ). Finally, a prohibition of direct mail solicitation of accident victims is reasonable because a filing requirement (the most often cited alternative to a ban) cannot alter the objectionable nature of the conduct, diminish its potential for stirring up litigation or diminish its capacity to "vex" accident victims and/or their families or to invade their privacy. Respondent's contention that he was without notice that direct mail solicitation of accident victims is impermissible is rejected (see Matter of Alessi, 60 N.Y.2d 229, 236, 469 N.Y.S.2d 577, 457 N.E.2d 682, cert. den. 465 U.S. 1102, 104 S.Ct. 1599, 79 L.Ed.2d ---).
The second charge against respondent alleges various...
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Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 83-2166
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