In re Canter
Chapter 12
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Email Listserve[NOTE: This case has been edited for classroom use by the omission of text. See this alternate source for another version of the opinion.]
JUDGMENT OF THE HEARING COMMITTEE
This cause was heard by the Hearing Committee of the Board of Professional Responsibility of the Supreme Court of Tennessee on January 24, 1997, pursuant to Rule 9, Rules of the Supreme Court. The matter was taken under advisement pending the submission of proposed findings of fact and conclusions of law which were filed on February 6, 1997. After due consideration of the exhibits and testimony, the pleadings, argument of counsel and the record as a whole, this Hearing Committee makes the following findings of fact and conclusions of law and submits its judgment in this cause:. . . .
¶2 The Internet Petition, Docket No. 95-831-O-H, was filed on June 18, 1995. . . .
. . . .
DOCKET No. 95-831-O-H, THE INTERNET MATTER
¶40 Respondent filed an answer relative to the petition designated as Docket No. 95-831-O-H which alleges that Respondent violated the Code of Professional Responsibility relative to an advertisement on the Internet.
¶41 Disciplinary Counsel filed a Request For Admissions that the book, How To Make A Fortune On the Information Highway, was a book written by Respondent and that the statements contained therein are true to Respondents belief. Respondent did not respond to this request:therefore, the book has been deemed so admitted, pursuant to Rule 36, Tennessee Rules of Civil Procedure.
¶42 Disciplinary Counsel on July 23, 1996, propounded interrogatories on the Respondent. Respondent has filed no answer to said interrogatories.
¶43 Respondent did not make an appearance at the hearing concerning Docket No. 95-831-O-H nor has Respondent offered any proof thereto.
¶44 The hearing panel on January 24, 1997, heard the Internet Matter separately from the Non-Internet cases. The hearing panel considered the allegations relative to the Internet separately from the other allegations relative to Respondent.
¶45 At the hearing on January 24, 1997, relative to the Internet, Disciplinary Counsel offered Gregory H. Siskin, [editor's note: should be "Siskind" here and throughout] an expert relative to lawyer advertising on the Internet. Mr. Siskin is a Nashville attorney whose legal practice focuses on Immigration Law and who utilizes the Internet. Mr. Siskin also saw the advertising that Respondent made on the Internet. The hearing panel found Mr. Siskin to be qualified as an expert. It was Mr. Siskin's expert opinion that the advertising by Respondent on the Internet violated the standards of conduct for use of the Internet as well as Tennessee's Code of Professional Responsibility.
¶46 On or about April 13, 1994, Respondent engaged in placing an advertisement that appeared on more than 5,000 Internet groups and thousands of E-Mail lists. The posting was unsolicited.
¶47 The posting read in totality:
Green Card Lottery 1994 May Be The Last One! THE DEADLINE HAS BEEN ANNOUNCED.
"The Green Card Lottery is a completely legal program giving away a certain allotment of Green Cards to persons born in certain countries. The lottery program was scheduled to continue on a permanent basis. However, recently, Senator Alan J. Simpson introduced a bill into the U.S. Congress which could end any future lotteries. THE 1994 LOTTERY IS SCHEDULED TO TAKE PLACE SOON, BUT IT MAY BE THE VERY LAST ONE.
PERSONS BORN IN MOST COUNTRIES QUALIFY, MANY FOR FIRST TIME.
The only countries NOT qualifying are: Mexico, India, P.R. China; Taiwan, Philippines, North Korea, Canada, United Kingdom (except Northern Ireland), Jamaica, Dominican Republic, El Salvador, and Vietnam.
Lottery registration will place soon. 55,000 Green Cards will be given to those who register correctly. NO JOB IS REQUIRED.
THERE IS A STRICT JUNE DEADLINE. THE TIME TO START IS NOW!!
For the next FREE, information via Email, send request to cslaw@indirect.com
******
Canter & Siegel, Immigration Attorneys
3333 E Camelback Road, Ste 250, Phoenix AZ 85019 USA
cslaw@indirect.com telephone (602) 661-3911 Fax (602) 451-7617"
¶48 The posting appeared on computer screen unsolicited, and each reader was required to read at least the introduction of each message. The posting appeared on Bulletin Boards having no relevance to immigration law. It was, therefore, an improper intrusion into the privacy of the recipient, in violation of DR 1-102(A)(1), (5) and (6), and DR 2-103.
¶49 Internet users/readers generally pay by the minute for access to the various Bulletin Boards. They, therefore, had to pay for the time they so viewed it. The recommendation for legal retention and employment was, therefore, not only unsolicited, but also at the recipient's expense. This was violation of DR I-102(A)(5) and (6), and DR 2-103(A).
¶50 At the time of this advertisement, DR 2-101(N) required the words: "This Is An Advertisement" to be included on communications soliciting professional employment. The posting placed by Respondent did not contain this language and thereby violated DR 2-101(N).
¶51 The Respondent's firm, particularly describing itself as "Immigration Attorneys", presented itself as a specialist. However, the posting did not contain the disclaimer required by DR 2-101(C).
¶52 Respondent did not deliver to the Board of Professional Responsibility a copy of this posting within three days of its distribution as required by DR2-101(F).
DEGREE OF DISCIPLINE TO BE IMPOSED RELATIVE TO THE INTERNET MATTER
¶53 ABA Standards For Imposing Sanctions, 7.l, 7.2, 7.3, and 7.4 provide the standards for imposing discipline in lawyer advertising cases. Standard 7.3 states that a reprimand (censure), "is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system." Standard 7.2 states that a suspension is appropriate if the conduct is "knowingly."
¶54 This posting caused injury to the public by intruding improperly into the privacy of computer users by compelling recipients to pay for an advertisement they did not want nor solicit. The advertisement has further damaged the reputation of the legal profession and thereby the legal system.
¶55 The following are aggravating factors to be utilized in assessing discipline in the Internet case: (ABA Standards For Imposing Sanctions, 9.2).
1. prior disciplinary offenses,
2. dishonest or selfish motive,
3. bad faith obstruction of the disciplinary proceedings, and
4. refusal to acknowledge wrongful nature of misconduct.
¶56 There are no mitigating factors appropriate to the Internet case.
JUDGMENT OF THE HEARING COMMITTEE
Based upon the pleadings, the evidence and testimony, the argument of counsel and the entire record in this cause,
It is therefore ORDERED, ADJUDGED and DECREED:
. . . .
2. That the Respondent, Laurence A. Canter, be suspended from the practice of law for one (1) year for those violations of the Disciplinary Rules set forth above in reference to Docket #95-831-O-H (the "Internet matter");
. . . .
[Editor's Note: On June 5, 1997, following the Hearing Committee's recommendation, the Supreme Court of Tennessee entered an order disbarring Laurence A. Canter for offenses unrelated to the Internet matter, with a one-year suspension for the Internet matter to be served concurrently with the disbarment.]
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