A recent article in the New Jersey Law Journal reported that the U.S. Court of Appeals for the Third Circuit has ruled that lawyers' free speech rights are violated by New Jersey's restriction on the use of complimentary quotes from judges in attorney advertising. The ruling came in the case of Dwyer v. Cappell.
The case revolved around statements contained on the website of employment lawyer Andrew Dwyer, which cited statements from three New Jersey Superior Court judges, which, according to the article, were "taken from rulings on fee applications, in which judges are obligated to make assessments of lawyers' abilities." One of the judges objected to the quote from his opinion appearing on Mr. Dwyer's website out of concern that the quote might mislead website visitors to conclude that it was a blanket endorsement of the attorney by the judge. Mr. Dwyer refused to remove it, saying he did not believe that it was in any way misleading.
The matter ended up before the New Jersey Committee on Attorney Advertising. The committee proposed a ban on attorney advertisements containing quotes from judges, and the New Jersey Supreme Court subsequently enacted a guideline banning any such advertising unless the text of the entire judicial opinion was included. The comment to the guideline specifically noted that the guideline was written specifically as a result of the statments contained on Mr. Dwyer's website.
Dwyer filed suit against the Committee on Attorney Advertising on the grounds that the guideline was an impermissible restriction on free speech. His suit was dismissed, but he appealed to the Third Circuit, where the committee argued that quotes from judges were inherently misleading and were a violation of the ethics rules forbidding comparisons of attorneys.
The Third Circuit held that the guideline in question was "unduly burdensome," suggesting that a disclaimer might be more appropriate if the intention of the guideline was not to restrict speech, but instead to require disclosure to prevent misleading advertising. In addition, the court found that providing "a full-text judicial opinion is so cumbersome that it effectively nullifies the advertisement."
The court noted that there was no reasonable argument that including the full text of the judicial opinion in the advertisement would prevent the misconception that the statements contained therein were a judicial endorsement of the attorney.
This isn't the first time an attorney advertising rule allegedly promulgated to prevent the dissemination of "misleading" information has been struck down, and likely will not be the last (See NY Rules on Lawyer Advertising Take Another Hit)
The full text of the Third Circuit's opinion can be found here.