Posted Aug 12, 2014 01:08 pm CDT
A federal appeals court has found a lawyer’s free speech rights were violated by a New Jersey ethics rule that barred lawyers from using judicial quotes in attorney advertising unless the full opinion is used.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled (PDF) on Monday in favor of Newark lawyer Andrew Dwyer, who had posted on his website quotes praising his work from judicial opinions on fee applications in employment cases.
The restriction effectively rules out that Dwyer can use the quotes and is a violation of his First Amendment rights, the 3rd Circuit said in an as-applied challenge. The Wall Street Journal Law Blog and the New Jersey Law Journal have stories on the opinion.
One of the quotes said Dwyer is “an exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me.” Another said Dwyer was “a fierce, if sometimes not disinterested advocate for his clients.”
A judge complained about his quote to the state bar’s Committee on Advertising after Dwyer refused his request to remove it from his website. The complaint resulted in “Guideline 3,” which barred quotes from judges or judicial opinions about a lawyer’s legal abilities, but allowed the lawyer to post the full opinion. The guideline said that a judge who discusses a lawyer’s work in an opinion on fees is making findings of fact, rather than an endorsement. As a result, using such quotes is inherently misleading in violation of the ethics rule barring misleading statements, the guideline said.
The appeals court said the guideline “is not reasonably related to preventing consumer deception and is unduly burdensome.” Indeed, the court said, providing the full opinion “may add only greater confusion.”
A reasonable alternative, the court said, might be a disclosure requirement such as, “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.”
In a footnote, the court added, “As to whether judicial opinion excerpts on Dwyer’s website actually have the potential to mislead, we note that the committee has produced no evidence that this is so, instead relying on ‘common sense.’ … The deceptiveness of accurately transcribed statements made by judges in judicial opinion excerpts is far from ‘self-evident.’ ”
Dwyer told the Wall Street Journal Law Blog he plans to put the quotes back on his website. He told the New Jersey Law Journal that the opinion is consistent with decisions by the 2nd, 5th and 11th Circuits. The decision is significant, he told the New Jersey Law Journal, because “a lot of the regulations of attorney advertising in New Jersey are antiquated and somewhat unconstitutional.”
The case is Dwyer v. Cappell.
ABA Journal: “Federal district court cautions lawyers to be careful about repeating judges’ compliments”