In a case recently decided by the United States Court of Appeals for the Third Circuit, a New Jersey ethics rule restricting lawyers from using complimentary statements by judges in attorney advertising was found to violate the constitutional right to free speech. Dwyer v. Cappell, Docket No. 13-3235 (3d Cir., August 11, 2014)

In 2007, attorney Andrew Dwyer, a labor and employment lawyer from Newark, NJ, launched a website, http://www.thedwyerlawfirm.com, displaying advertisements that included excerpts from three unpublished judicial opinions applauding his legal abilities. In 2008, Judge William Wertheimer, the Assignment Judge in Union County, NJ who was one of the judges quoted on Dwyer’s website ad, wrote to Dwyer requesting that his quotation be removed because he “would not care for potential clients [of Dwyer] to believe that it is a blanket endorsement” of him. Dwyer refused to take the excerpt down because he did not believe the language was false or misleading. Judge Wertheimer’s letter and Dwyer’s response were forwarded to the New Jersey Bar’s Committee on Attorney Advertising.

After the Committee held several meetings, solicited comments from NJ State Bar members and published proposed regulations, the NJ Supreme Court approved an amended version of the Committee’s proposed regulation, now called Guideline 3, which banned advertising with quotes from judges or judicial opinions unless the attorney included the full text of the judicial opinions in the ad:

An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement

The day before Guideline 3 went into effect, Dwyer filed an action in NJ federal district court seeking injunctive and declaratory relief under 42 U.S.C. § 1983. After discovery, the parties filed cross-motions for summary judgment. The District Court granted the Committee’s summary judgment motion. The Court explained that “because [Guideline 3] requires full disclosure of a judicial opinion,” it is “not a ban on speech but is instead a disclosure requirement.” Dwyer appealed.

On appeal, the Third Circuit disagreed with the district court and held that the guideline was unconstitutional because “the Guideline was not reasonably related to the [stated] goal of preventing consumer deception and is unduly burdensome.” The Third Circuit explained that providing a full opinion would not help potential clients understand that the judicial quote was not an endorsement, and that requiring attorneys to post full opinions overly burdened the right to advertise. Therefore, the appeals court reversed the district court’s opinion and remand the case.

The case is attached here – Dwyer v. Cappell

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