Attorney can quote judicial opinions in advertising
A New Jersey attorney has a First Amendment right to post accurate quotations from judicial opinions about himself and his abilities, a federal appeals court has ruled.
Newark-based attorney Andrew Dwyer posted several quotations from court opinions concerning applications for fees in employment-discrimination cases on his firm’s website. For example, these two quotes from two judges appeared on Dwyer’s site:
“Mr. Dwyer is, I think an exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me. He is tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position, but no one can fault his zeal and his loyalty to his client, and no one can question his intellect … .”
“The inescapable conclusion is … that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer … . Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved.”
One judge whose comments were posted on Dwyer’s website wrote a letter to him in April 2008, asking that the quote be removed because he did not want potential clients to view his quote as a blanket endorsement. Dwyer refused and somehow the matter reached the New Jersey Bar’s Committee on Attorney Advertising, which began working on a rule to address situations like this.
In May 2012, the New Jersey Supreme Court approved a guideline, which provided that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The guideline did provide that an attorney could post the entire text of a judicial opinion.
The day before this guideline was to go into effect, Dwyer filed a First Amendment lawsuit in federal court, contending that it violated his First Amendment right to engage in truthful and nonmisleading commercial speech.
In June 2013, a federal district judge ruled in favor of the New Jersey Committee on Attorney Advertising. The judge reasoned that the ban on quotes was reasonably related to the committee’s interest in protecting consumers from misleading speech.
“A judicial quotation’s potential to mislead a consumer is self-evident,” the judge wrote. “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.”
Dwyer appealed to the 3rd U.S. Circuit Court of Appeals. On Aug. 11, 2014, a three-judge panel of the 3rd Circuit ruled in favor of Dwyer in Dwyer v. Cappell and reversed the district court decision.
The federal appellate panel reasoned that “the Guideline is not reasonably related to preventing consumer deception and is unduly burdensome.”
The Committee on Attorney Advertising had argued that an attorney could post the full text of judicial opinions, but the federal appeals court panel noted that “providing the full opinion may add only greater confusion.”
The panel noted that under the interpretation of this guideline by the committee, an attorney could not even post a hyperlink to the full decision. Furthermore, the appeals court said that posting the entire text of judicial opinions would be “so cumbersome that it effectively nullifies the advertisement.”
The 3rd Circuit panel decision recognized that attorneys have a right to advertise as long as they engage in truthful and nonmisleading speech. Accurately quoting a judicial opinion is not a form of false or misleading speech.