Antitrust Law Daily Wrap Up, ADVERTISING—3rd Cir.: Restriction on attorney’s use of judicial excerpts in ads rejected as overly burdensome, (Aug 13, 2014)

By Linda O’Brien, J.D., LL.M.

New Jersey Supreme Court guidance on attorney advertising, which restricted the use of excerpts from judicial opinions, overly burdened an attorney’s right to advertise his commercial services and, as such, violated his right to free speech, the U.S. Court of Appeals in Philadelphia has ruled. Therefore, a district court order granting summary judgment to the state bar committee on attorney advertising was reversed and remanded (Dwyer v. Cappell, August 11, 2014, Per Curiam).

Andrew Dwyer launched a website for his law firm and included on its home page two excerpts from unpublished judicial opinions concerning fee applications in employment discrimination cases under the New Jersey Law Against Discrimination. The excerpts were made in the context of the statute’s fee-shifting provisions that require judges to access the abilities and legal services of plaintiff attorneys. After a judge requested that his quoted comments be removed from the website, the New Jersey Bar’s Committee on Attorney Advertising solicited comments on a proposed attorney advertising guideline that would ban the inclusion of a quote from a judicial opinion regarding the attorney’s abilities or legal services on a website or other advertisement.

In 2012, the state supreme court approved an amended version of the guideline that allowed attorneys to advertise with the full text of the judicial opinions. Dwyer filed suit seeking to enjoin enforcement of the guideline. The federal district court, in granting the Committee’s motion for summary, characterized the guideline as a regulatory requirement of additional disclosure rather than a restriction on speech. Dwyer appealed.

The appellate court found that the guideline requirement that an attorney reprint in full text of the judicial opinions on his firm’s website was not reasonably related to the prevention of consumer deception. A disclosure requirement is “reasonably related to the state’s interest in preventing deception of consumers where it can plausibly dispel the misleading nature of the advertisement to those who read it.” The guideline does not require disclosure of anything that could reasonably remedy consumer deception stemming from Dwyer’s advertisement. The provision of a full judicial opinion would not reveal to a potential client that an excerpt of that opinion is not an endorsement, the court noted.

Additionally, the guideline is overly burdensome as it rules out the possibility that Dwyer could advertise with an accurately quoted excerpt of a judicial statement about his abilities, according to the court. To comply with the guideline, Dwyer must advertise with a full length judicial opinion if he wants to use any portion of that opinion on his website. The provision of a full text judicial opinion is so cumbersome that it effectively nullifies the advertisement.

Finally, while the guideline may be intended to make the quotation of judicial opinions so burdensome that attorneys will cease doing so, the type of restriction was an outright ban on advertising with judicial excerpts. Because the guideline effectively precluded advertising with accurate excerpts from judicial opinions on Dwyer’s website, it was unduly burdensome, the court concluded.

The case is No. 13-3235.

Attorneys: Andrew Dwyer (The Dwyer Law Firm) is pro se. John J. Hoffman, Office of the Attorney General of New Jersey for Cynthia A. Cappell, Jonathan M. Korn, Frank L. Corrado, Elizabeth Y. Fuerst, Sheryl Mintz Goski, Amirali Y. Haidri, Nora Poliakoff, and Carol Johnston.

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