In re Alessi, 60 N.Y.2d 229 (1983)
An attorney’s direct mail solicitation to realtors, intended to generate legal business, can be constitutionally proscribed where it creates a potential conflict of interest, serving a substantial government interest.
Summary
This case addresses the constitutionality of New York Judiciary Law § 479 and the Code of Professional Responsibility, which restrict attorney advertising. The Court of Appeals held that these provisions could be applied to attorneys who approved a direct mail advertisement to realtors, quoting fees for real estate transactions. The court reasoned that such mailings created a potential conflict of interest and were not protected commercial speech because the state has a substantial interest in preventing attorney-client conflicts. The court distinguished this case from others involving broader protections for associational activity or political expression.
Facts
Attorneys Cawley and Schmidt, partners in a legal clinic, approved a letter, on their firm’s letterhead, to approximately 1,000 realtors in the Albany area.
The letter quoted fees for listed real estate transactions. The intent of the letter was to solicit engagements to render legal services in connection with real estate closings.
The Committee on Professional Standards filed a petition alleging professional misconduct.
Procedural History
The Appellate Division denied the respondents’ motion to dismiss the petition, relying on Matter of Greene.
The respondents appealed to the New York Court of Appeals, which dismissed the appeal.
The U.S. Supreme Court granted certiorari, vacated the Court of Appeals’ order, and remanded the case for further consideration in light of Matter of R. M. J..
The Appellate Division found the respondents guilty of misconduct but imposed no sanction, noting the good faith reliance on prior Supreme Court decisions.
Issue(s)
Whether the application of Judiciary Law § 479 and the Code of Professional Responsibility to the respondents’ conduct of approving the mailing of a letter soliciting legal business from realtors violates their constitutional right to free speech.
Whether Judiciary Law § 479, as applied to the respondents, violates their due process rights because it was not interpreted to apply to their conduct until after the letter was sent.
Holding
No, because the state has a substantial governmental interest in preventing conflicts of interest in attorney-client relationships, and the regulation is not overly broad.
No, because the respondents had sufficient notice from existing laws and Supreme Court precedent that their conduct involving potential conflicts of interest could be proscribed.
Court’s Reasoning
The court reasoned that the key issue was preventing conflicts of interest, not deception, which was the focus of Matter of R. M. J.. The court distinguished this case from cases involving associational activity or political expression, where a higher level of precision in regulation is required. The regulation here was not a ban on all third-party mailings, but rather a targeted restriction on mailings to third parties who might have dealings with potential clients, creating a potential conflict of interest.
The court stated, “[T]here is a substantial governmental interest in preventing conflicts of interest in attorney-client relationships which the statute directly protects and for which there is no adequately protective less restrictive alternative.”
The court emphasized that the proscription was against a particular *manner* of advertising – through a third party whose interests may be intertwined with those of the attorney more than the client.
The court cited Ohralik v. Ohio State Bar Assn., noting that the State may impose prophylactic measures to prevent harm before it occurs, especially where a lawyer’s judgment may be clouded by self-interest and the transaction is not subject to public scrutiny. The court held that it is not unreasonable for the state to conclude that broker-referrals are inherently conducive of conflict.
Regarding due process, the court found that despite the absence of specific prior rulings directly addressing the issue, the attorneys had sufficient notice of the proscription against solicitation with the potential for conflict of interest, based on existing statutes and Supreme Court precedent.
The court stated that attorneys “had notice from section 479 of the Judiciary Law and DR 2-103 (A) of the Code of Professional Responsibility that all solicitation of legal business was proscribed…except as they infringe upon constitutionally protected free speech.”