In an interesting First Amendment decision issued yesterday, he U.S. Court of Appeals for the Third Circuit struck down a New Jersey attorney-advertising guideline that banned attorneys from including judicial quotations in their advertising unless the full judicial opinions appeared in the advertisement.
In Dwyer v. Cappell, an attorney, Andrew Dwyer, included several favorable quotations from judicial opinions on his firm’s webpage, including one where a judge, in the context of a fee application, noted that the attorney was “a fierce, if sometimes not disinterested advocate for his clients,” who had “molded the case to the point where it could be successfully resolved.” The judge who wrote that opinion asked Dwyer to remove the quotation from the website. When Dwyer refused, the judge contacted the Committee on Attorney Advertising.
After meeting with Dwyer and receiving submissions from him on the issue, the Committee proposed an attorney-advertising guideline, and solicited public comment on it, that would have banned attorneys from including quotations “from a judge or court opinion (oral or written) regarding the attorney[s’] abilities or legal services.” Dwyer submitted a comment objecting to the proposed objection as an unconstitutional ban on speech. Nonetheless, three years later, the New Jersey Supreme Court approved an amended version of the guideline that banned attorneys from using quotations from judicial opinions in their advertisements, but allowed them to advertise using the full text of judicial opinions in which those quotations appeared. The comments to the proposed rule explained that it was designed to avoid confusing the public into believing that a judge was endorsing a specific attorney, something that is prohibited under the Rules of Professional Conduct.
Dwyer sued to block the proposed guideline, but the U.S. District Court for the District of New Jersey ruled against him. The district court held that the proposed guideline was not a ban on speech, but was instead a disclosure requirement. As a result, it would pass constitutional muster as long as it was reasonably related to the State’s interest in preventing consumers from being deceived and was not unduly burdensome to Dwyer. Under this standard, the district court ruled that the potential for the quotations to mislead was “self evident” because, without the context of the entire opinion, they could “easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system.” Without much explanation, the district court also noted in a footnote that it would have reached the same conclusion even if the proposed guideline was a restriction on free speech and was thus subject to the more rigorous intermediate scrutiny standard.
The Third Circuit reversed. It discussed the distinction between bans on speech and disclosure requirements, and noted that New Jersey’s proposed guideline had aspects of both, but ultimately ruled that it did not have to resolve this issue because the guideline was not reasonably related to preventing consumer deception and was unduly burdensome to Dwyer. As a result, it was unconstitutional even under the less stringent standard governing disclosure requirements. (Note: Dwyer challenged the proposed guideline as applied to him. While his complaint in the district court and opening brief to the Third Circuit also mentioned a facial challenge, he clarified at oral argument that he was relying on the as-applied challenge exclusively.)
The Third Circuit held that a disclosure requirement is reasonably related to the State’s interest in preventing consumer deception when it could “plausibly dispel the misleading nature of the advertisement to those who read it.” According to the court, New Jersey’s proposed guideline did not “require disclosing anything that could reasonably remedy conceivable customer deception.” Specifically, the court held that requiring the attorney to include a full judicial opinion in his advertising would not reveal to a potential client “that an excerpt of the same opinion [was] not an endorsement,” and might even “add only greater confusion.” On this point, however, the court did note that a simple disclaimer would likely be acceptable – e.g., “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.”
In addition to not being reasonably related to the State’s interest in preventing consumer deception, the court also held that New Jersey’s proposed guideline was unduly burdensome. The proposed guideline would require the attorney to “advertise with a full-length judicial opinion if he wants to use any portion of that opinion on the website,” which, the court held, was “so cumbersome that it effectively nullifies the advertisement.”
For the reasons discussed above, the Third Circuit held that prohibiting the attorney’s “accurate quotes from judicial opinions [] violates his First Amendment rights to advertise his commercial services.” Somewhat ironically, however, the alternative that the Third Circuit suggested would not have violated his First Amendment rights – a disclaimer indicating that a judicial quotation was not an endorsement – might actually lead the attorney to abandon judicial quotations entirely. Although I am no marketing guru, it seems like a quote about how good you are followed by a disclaimer saying that the quote was not an endorsement of how good you are would not be a terribly effective advertisement. Nonetheless, this is an important First Amendment decision, and an excellent primer on the evolution of First Amendment law as it relates to commercial speech in general and attorney advertising specifically.
Pete's Take 