Federal district court cautions lawyers to be careful about repeating judges' compliments
By David L. Hudson Jr.
Oct 1, 2013, 08:20 am CDT
An attorney in Newark, N.J., has vowed to appeal a recent U.S. district court ruling that his law firm’s website may not post excerpts from judicial opinions praising the quality of his work on various cases.
The Dwyer Law Firm primarily represents employees pursuing claims against their employers. Shortly after the firm created its website in 2007, it began posting comments by judges complimenting the work of attorney Andrew Dwyer. The comments were taken from unpublished opinions in fee applications filed by Dwyer, but the full opinions were not posted on the firm’s website.
In 2008, one of the judges sent a letter to Dwyer requesting that his quote be removed from the firm’s website. When the firm declined to do so, the judge referred the matter to the New Jersey Committee on Attorney Advertising. The committee was created by the New Jersey Supreme Court with authority to consider ethics grievances and issue advisory opinions relating to provisions in the state’s Rules of Professional Conduct that cover lawyer advertising and other forms of communications with clients.
On May 15, 2012, the committee issued Attorney Advertising Guideline 3 (PDF), stating that “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.”
In a comment published with the guideline, the state supreme court noted that Rule 7.1(a) of its Rules of Professional Conduct (which follow the ABA Model Rules of Professional Conduct) prohibits misleading statements. “The committee finds that such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials,” states the comment. “As such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of RPC 7.1(a).”
CAN I QUOTE YOU ON THAT, JUDGE?
Dwyer contends that the guideline is an unconstitutional restriction on his First Amendment free speech rights. “It is a ludicrous proposition to say that someone cannot quote accurately from a judicial opinion,” Dwyer says. “How could a ban on accurately quoting the government be constitutionally valid under the First Amendment?”
Besides, Dwyer says, Guideline 3 makes little sense given that attorneys in New Jersey may include quotes from clients and other forms of testimonial in their advertising. “You are permitted to put on your website quotations from clients or other people who like you and who say nice things about you, even if you don’t provide the full quote,” he says.
Guideline 3 was to become effective on June 1, 2012. On May 30, Dwyer filed a complaint in the U.S. District Court for the District of New Jersey, based in Newark, seeking to enjoin enforcement of Guideline 3.
But now, more than a year later, the court has sided with the attorney advertising committee.
In an opinion issued June 26 in Dwyer v. Cappell (PDF), Judge Faith S. Hochberg held that “Guideline 3 is not a ban on speech but is instead a disclosure requirement, because it requires full disclosure of a judicial opinion.” Accordingly, Hochberg determined that the reasonableness test set forth by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), where the court ruled that a disclosure requirement on attorney advertising speech is constitutional as long as it is reasonably related to the state’s interests in preventing consumer deception, should be applied to Guideline 3.
A THREAT TO JUDICIAL INTEGRITY
In Hochberg’s view, Guideline 3 passed the Zauderer test with flying colors. “A judicial quotation’s potential to mislead a consumer is self-evident,” wrote Hochberg in her opinion. “Without the surrounding context of a full opinion, judicial quotations relating to an attorney’s abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system.”
Thus, Hochberg wrote, “the disclosure requirements of Guideline 3 are reasonably related to the state’s interest in preventing the deception of consumers and preserving public confidence in the impartiality of the judiciary; moreover, Guideline 3’s requirements are not unduly burdensome, as they simply require the full context surrounding a judge’s evaluation of a lawyer.”
Not everyone in the field is convinced by the district court’s opinion. “The key issue is whether Guideline 3 is a restriction on speech or a requirement for additional disclosure,” says Richard T. Kaplar, vice president of the Media Institute, a research foundation in Arlington, Va. “If it is indeed a disclosure requirement, then the question becomes whether it is unduly burdensome or not. The state says it is not unduly burdensome.”
But Kaplar, who has written extensively on commercial speech issues, has his doubts. “The determination of whether any requirement is ‘unduly burdensome’ is inherently subjective,” he says. “I didn’t see in this opinion any substantial justification by the court as to why this disclosure requirement is not unduly burdensome—only a brief statement that requiring ‘full context’ is not unduly burdensome, without any apparent regard for how lengthy that context might be.” Kaplar says, “Guideline 3 appears to be a de facto restriction on speech masquerading as a disclosure requirement.”
Steven G. Mason, a lawyer in Orlando, Fla., who has had run-ins over the years with the Florida Bar about advertising regulations for lawyers, argues against extensive limits on what lawyers may include in their advertising. “If the quotations are truthful and are contained within an order issued by a judge, that is a public record and is permissible free speech,” Mason says. “There should be no built-in traps or additional hurdles that attorneys must leap. Would it be any different if the attorney provided an additional link to the full order or case number or directions on how to review the court file?”
For his part, Dwyer isn’t ready to give up his fight, and he already has filed a notice of appeal to take his case to the 3rd U.S. Circuit Court of Appeals at Philadelphia. “I don’t think it is beneficial for consumers to be deprived of information,” he says. “I believe that people who are looking to hire a lawyer should interview multiple lawyers. I trust consumers to be sophisticated enough to separate the wheat from the chaff.”