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.