*165***41**839 Robert M. Cohen, Ballston Lake, and Arthur L. Rosen, Troy, for appellant.
*166 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 *167 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.
***42 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.
**840 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 [A], [C], [E] ); (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 [A] [4], [6]; DR 2–101 [A], [B] ); 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 [A], [C], [E]; DR 2–102 [A], [B] ). (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 *168Matter ofKoffler, 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” [citations omitted] (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 ***43 from the practice of law for six months.
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.
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.
*170 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.
The State is permitted considerably more latitude in restricting the time, place and manner of speech than it is when it attempts to restrict content. Time, place and manner restriction are valid if reasonable and rationally related to legitimate State interests. Content or subject matter may be regulated only if substantial State interests are involved and then the regulation may go no further than necessary to serve that interest.
(1) Is the Communication outside the scope of Constitutional Protection? There is no constitutional right to disseminate false or misleading information or information about unlawful activity (Central Hudson Gas & Elec. v. Public Serv. Comm., supra, 447 U.S. at p. 563, 100 S.Ct. at p. 2350). Petitioner contends, therefore, that permitting respondent to solicit business by mail notwithstanding the determination of the referee and the Appellate Division that portions of the communication were misleading, deprives it of its recognized power to prevent deceptive advertising. Our inquiry, however, is whether a particular method of advertising is inherently misleading. If a certain type of information can be presented in a way that is not deceptive, a State may not absolutely prohibit the method used because it is sometimes used to disseminate misleading information (Matter of R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, supra ). Direct mail solicitation of accident victims is not inherently misleading nor is there a history that the practice has led to abuses. Thus, because information on the availability ***46 of legal services for accident victims may be communicated in a fair and understandable fashion, absolute prohibition is unwarranted (see, e.g., Matter of Appert, 315 N.W.2d 204 [Minn.] ).
(2) What Substantial Governmental Interests are Protected? At least four governmental **844 interests can be identified in support of the outright ban on mail solicitation of accident victims: overcommercialization of the profession and the potential for “ambulance chasing”; invasion of privacy and the possibility of undue pressure; stirring up litigation; and the potential for deception.
The Appellate Division attempted to justify a ban on direct mail solicitation of accident victims as a measure *174 necessary to prevent overcommercialization and the potential for practices reminiscent of “ambulance chasing”. In Matter of Koffler, 51 N.Y.2d at p. 149, 432 N.Y.S.2d 872, 412 N.E.2d 927, we noted that overcommercialization is now controlled by the advertising standards set forth in DR 2–101. While lawyer advertising may appear unseemly to many members of the profession, particularly where, as here, it is directed at the unfortunate victims of a disaster or their families, it is constitutionally protected and serves the recognized purpose of informing those in need of the cost and availability of legal services (see Bates v. State Bar of Ariz., 433 U.S. 350, 364, 97 S.Ct. 2691, 2699, supra ).
Furthermore, mail solicitation does not constitute a substantial invasion of privacy or present a risk of undue pressure. The simple answer to the claim that it does is that the recipient of a lawyer's letter “may escape exposure to objectionable material simply by transferring [it] from envelope to wastebasket” (Consolidated Edison Co. v. Public Serv. Comm., 447 U.S. 530, 542, 100 S.Ct. 2326, 2335,supra; Matter of Koffler, 51 N.Y.2d 140, 149, 432 N.Y.S.2d 872, 412 N.E.2d 927, supra ). Nor is avoidance of the intrusion more difficult because the families of accident victims and the victims themselves may be emotionally upset when they receive a solicitation letter. As we noted in Koffler, it is not enough to justify a ban upon solicitation that in some situations, such as marital discord or a death in the family, the letter might be offensive (supra, at p. 149, 432 N.Y.S.2d 872, 412 N.E.2d 927). The same observation applies to accident victims and their families.
Unlike Matter of Koffler (supra), however, solicitation in personal injury cases does pose a danger that litigation will be stirred up. Historically, the Government has exhibited its strong interest in regulating this problem by the offenses of champerty and barratry and undoubtedly, frivolous litigation continues to result in unwarranted economic and societal costs today. Regulations which prevent or inhibit the stirring up of unwarranted litigation serve an important public purpose. Thus, the courts properly should limit uninvited communications from an attorney which instigate groundless lawsuits and neither further associational values protected by the First Amendment (see Matter of Primus, 436 U.S. 412, 98 S.Ct. 1893, supra ) nor aid in the dissemination of truthful information about the availability *175 of legal relief to members of the public in need of such information (cf. Matter of Teichner, 75 Ill.2d 88, 25 Ill.Dec. 609, 387 N.E.2d 265). In this case, however, the victims and their families had evident need for legal counsel and the mail solicitation of them arguably performed an informational function which the State could not proscribe. As the Supreme Court has said, it is better to address such wrongs than to suffer in silence (see Bates v. State Bar of Ariz., 433 U.S. 350, 364, 376, 97 S.Ct. 2691, 2699, 2705, supra ).
Finally, the potential for deception present in Matter of Koffler (supra ) is also a genuine concern here because these mailings are not subject to the public scrutiny that a newspaper or television advertisement would receive (51 N.Y.2d, at p. 149, 432 N.Y.S.2d 872, 412 N.E.2d 927). Moreover, many people may perceive a potentially greater incentive for deception in personal injury litigation than in other types of legal business because greater ***47 sums of money may be involved, the nature of the representation may be less routine, contingent fee arrangements may be employed, and because of past abuses in the area. These are serious concerns, but they are concerns which must be addressed whether the solicitation is in person or in writing and the potential for deception is **845 not greater in mail solicitation. Indeed it may reasonably be contended that the use of writing and the filing requirement approved in Koffler helps sanitize statements made in the solicitation of personal injury cases.
(3) and (4) How Directly Does the Regulation Advance the Identified Governmental Interests—Is there a Less Drastic Alternative? A complete ban on the type of solicitation involved here would obviate any danger of deception. However, complete suppression is constitutionally impermissible because the less drastic alternative of filing the letters is present (Matter of Koffler, supra, at p. 150, 432 N.Y.S.2d 872, 412 N.E.2d 927).
In sum, the State cannot establish interests of sufficient magnitude to override the public's interest in receiving information on the availability of legal services and the danger of deception presented by the mailing may be controlled by the filing requirement.
II
Respondent next contends that petitioner failed to present sufficient evidence to support allegations of deception *176 contained in charge II because testimony by recipients of the mailings was necessary before the writing could be found deceptive.
Petitioner was required to establish the charges by a fair preponderance of the evidence (Matter of Capoccia, 59 N.Y.2d 549, 553, 466 N.Y.S.2d 268, 453 N.E.2d 497). It satisfied that burden with respect to charge II by introducing the letters themselves, which, when interpreted in a commonsense manner, contain two deceptive statements: (1) that a litigation coordinating committee had been formed to assist the Hyatt Regency disaster victims; and (2) that many accident victims and/or their families had requested representation by respondent. The first statement is misleading because respondent and his former secretary were the sole members of the committee and the statement implies the existence of an entity independent of respondent. The second statement is deceptive because some, not many, families had contacted him, and none had in fact requested representation.
Respondent disputes these findings by adopting a hypertechnical analysis of the term “committee”, as encompassing an organization with one member, and a liberal interpretation of “some and many” which minimizes any distinction between those two terms. There was ample support in the record for petitioner's interpretation and there was no need to establish that the letters actually mislead the recipients. It is the potential for deception which is significant (see Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 464, 98 S.Ct. 1912, 1922, supra ).
III
Finally, the Appellate Division concluded that the use of the phrase “The Country Lawyer” constituted a violation of the prohibition against use of a trade name contained in DR 2–102(B).
The purpose of the prohibition against trade names embodied in DR 2–102(B) is to prevent the public from being deceived about the identity, responsibility and status of those who use the name (Matter of Shannon, 292 Or. 339, 638 P.2d 482; cf. Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 [use of trade names by optometrists] ). The use of the motto “The Country Lawyer” in respondent's flyer did not deceive in that way *177 because the lawyer's name was inserted apart from the motto. The case relied upon by the Appellate Division, Matter of Shephard, 92 A.D.2d 978, 459 N.Y.S.2d 632, is distinguishable. In Shephard, the court found that the corporate name “The People's ***48 Law Firm of Jan L. Shephard, Attorney, P.C.” constituted a trade name because it suggested that the firm was controlled by the public, received public funding or provided legal services on a nonprofit basis. No such potential for deception is present in the use of the term, “The Country Lawyer”.
Accordingly, the order of the Appellate Division should be modified by dismissing charge I and charge III and the matter **846 remitted to the Appellate Division, Third Department, for reconsideration of the sanction imposed, and, as so modified, affirmed, without costs.
COOKE, C.J., and JASEN, JONES, MEYER and KAYE, JJ., concur.
WACHTLER, J., taking no part.
Order modified and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed, without costs.
*178 EXHIBIT A
406 State St.
Schenectady, N.Y. 12305
ATTENTION HYATT REGENCY DISASTER VICTIMS
A Litigation coordinating committee has been formed to protect the rights and preserve the claims of all persons injured and the families of those deceased in the disaster of July 17, 1981
An attorney has agreed to provide free legal consultation to assist any persons with questions as to their rights and possible claims arising from this incident.
If you have any questions concerning sources of income available such as social security disability and survivor benefits or questions pertaining to the probate of an estate, transfer of property or your claims against the hotel; property owner and builder call collect (518)842-6716 or (518)382-0438 or drop a card to Diane Frost at the above address.
A committee person will be available to assist in the completing of and filing of documents, obtaining accident reports, death certificates, to proivde other assistance, information, and help obtain the services you need. This is a volunteer group and services provided by committee persons are free.
Initial reports released to the media by the hotel representatives imply the accident was the victim's fault. This is absurd. Your interest is not being represented by anyone at the accident site at this time. However, by uniting together each persons claim can be preserved and results of any onesided investigation can be nullified.
Sincerely,
Diane Frost
Committee Coordinator *179**847
***49 EXHIBIT B
406 State St.
Schenectady, N.Y. 12305
ATTENTION HYATT REGENCY DISASTER VICTIMS
Many of you have requested representation by attorney Eric P. von Wiegen who volunteered initial FREE consultation concerning your claims against the Hyatt Regency, and others responsible for the death and injuries caused in this disaster.
He has agreed to represent victims or their surviving family members on a contingent fee basis of twenty-five percent (25%) of the sum recovered, after the reimbursement of reasonable and necessary cost incurred in making the recovery. The cost will be pro-rated among those persons represented by Mr. von Wiegen, and will be deducted from any sum recovered, before an attorney's fee is charged.
Because of Mr. von Wiegen's experience in the practice of personal injury litigation involving multiple defendants, and based upon conversations with potential experts, it is his opinion that the liability of the defendants is clear. His usuasl and customary attorney's fee in such instances is twenty-five percent (25%). However, he has advised us that should client represenation exceed twenty-five persons, his fee shall be twenty percent (20%) to each client represented, and shall be charged as outlined above.
Mr. von Wiegen is an experienced personal injury attorney, licensed to practice in the states of New York and Michigan. He has and does represent clients in many of the other states. If you wish to discuss this matter please call COLLECT 518-382-0438 8:30 a.m. to 5:30 p.m. EST, or COLLECT 518-842-6716, evenings to 11 p.m. and weekends.
The referee also found, although there was no charge to the effect, that respondent had violated subdivision (k) of section 806.15 of the department's rules (22 NYCRR) by failing to include his name on the initial letter sent to the disaster victims. Citing Matter of Doherty, 28 A.D.2d 546, 280 N.Y.S.2d 340), the Appellate Division concluded that the charge could not be sustained because it was not contained in the petition.
The Appellate Division confirmed the referee's rejection of petitioner's objection to the use of caricatures of Abraham Lincoln and George Washington on the flyer, characterizing them as “innocuous drawings”. It also confirmed the referee's determination that the use of flyers does not, per se, constitute unconstitutional solicitation. The Grievance Committee has not appealed these determinations.