3rd Circuit ruling upholds a lawyer's right to post glowing judicial comments about his work
Photo of Andrew Dwyer by Len Irish
Andrew Dwyer vowed to appeal when a federal district court ruled in June 2013 that his law firm’s website may not post excerpts from unpublished judicial opinions praising the quality of his work on various cases. And now Dwyer’s persistence has paid off.
In August 2014, the 3rd U.S. Circuit Court of Appeals headquartered in Philadelphia overturned the U.S. District Court for the District of New Jersey in a decision that has caused First Amendment and lawyer ethics experts to take notice.
“The 3rd Circuit’s opinion is highly persuasive and likely to gain traction as a significant national precedent,” says First Amendment scholar Rodney A. Smolla, who is teaching this spring at the University of Georgia School of Law in Athens.
Dwyer had posted several quotations from court opinions concerning applications for fees in employment-discrimination cases on the website of the Dwyer Law Firm in Newark, New Jersey. One such quote stated: “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.”
A 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 comments as a blanket endorsement of the attorney. Dwyer refused, and the matter reached the New Jersey State Bar Association’s Committee on Attorney Advertising, which began working on a rule to address such situations.
The result was so-called Guideline 3 (PDF), approved by the New Jersey Supreme Court in 2012. Guideline 3 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, however, permit an attorney to post the entire text of a judicial opinion.
The day before Guideline 3 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.
THE MEANING OF GUIDELINE 3
In ruling against Dwyer, the district court reasoned that the rule was a mere disclosure requirement instead of a direct restriction on speech. The U.S. Supreme Court discussed disclaimer or disclosure requirements in Zauderer v. Office of Disciplinary Counsel (1985), a key early decision on lawyer advertising, noting that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the state’s interest in preventing deception of consumers.”
Relying on Zauderer, the district court in Dwyer’s case determined that the disclosure requirement was reasonably related to protecting consumers from misleading speech.
Ruling on Dwyer’s appeal, a three-judge panel of the 3rd Circuit ruled unanimously in Dwyer’s favor on Aug. 11. In its opinion in Dwyer v. Cappell (PDF), the 3rd Circuit acknowledged that disclosure requirements receive less constitutional scrutiny than outright restrictions on speech. The panel noted that the New Jersey guideline bore characteristics of both a disclosure requirement and a restriction on speech. The court did not decide which category the rule fell into because even under the more deferential standard of review for disclosure requirements, the rule was constitutionally flawed.
The panel wrote that “Guideline 3 does not require disclosing anything that could reasonably remedy conceivable consumer deception stemming from Dwyer’s advertisement.” The opinion offered an example of a sufficient disclosure: “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.”
But that is not what Guideline 3 did. Instead, it required an attorney to post entire judicial opinions. The 3rd Circuit explained that “because Guideline 3 effectively precludes advertising with accurate excerpts from judicial opinions on Dwyer’s website, it is unduly burdensome.”
A ROUND OF APPLAUSE
Free speech experts applauded the appellate ruling. “The 3rd Circuit’s reasoning was spot-on from a First Amendment perspective, recognizing the overbroad nature of New Jersey’s guideline,” says Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville. “Zauderer’s ‘reasonably related’ standard is an extremely relaxed form of judicial scrutiny and highly deferential to governmental authority. The 3rd Circuit’s decision in Dwyer is important because it finally gives judicial pushback to an example of sweeping governmental overreach and suggests there is a boundary beyond which Zauderer cannot be stretched.”
In Smolla’s view, the opinion follows a recent trend in which several federal appellate courts have restricted the reach of Zauderer. “There is growing judicial hostility toward regulations that impose burdensome disclosure or disclaimer requirements when the allegedly misleading character of the underlying advertising message is weak and attenuated,” he says. “Courts are increasingly skeptical of the invocation by regulators of phrases such as ‘inherently misleading’ or ‘self-evidently misleading.’ “
In Dwyer, the 3rd Circuit “properly rejected the highly paternalistic view that consumers, including the potential clients of lawyers, are too unsophisticated to figure out for themselves that an accurately excerpted quotation from a judge, taken from the public record, is not a blanket endorsement of a lawyer’s abilities,” Smolla says.
“Judicial opinions are public, even if technically unpublished. Anyone could look them up,” says Calvert. “Mr. Dwyer simply took a shortcut and saved the public the time of having to do so. If judges don’t want their views of the counsel who appear before them known, then they should either keep them to themselves or disclose them within the confines of a close circle of friends—out of earshot of others.”
For his part, Dwyer is pleased. “I’m obviously very gratified by the 3rd Circuit’s decision,” he says. “I thought the appeals court engaged in a conventional First Amendment analysis. There was not a shred of evidence that this rule was about protecting consumers from harm. Instead, this rule was about protecting the sensibilities of judges.”
Dwyer says he plans on putting quotes about himself from judicial opinions back on his website, but “we are waiting on the trial court to issue the order implementing the mandate from the 3rd Circuit and waiting to see if the state files a petition for writ of certiorari to the U.S. Supreme Court.”
If that happens, get ready for round three.
This article originally appeared in the February 2015 issue of the ABA Journal with this headline: “Second Time’s a Winner: 3rd Circuit ruling upholds a lawyer’s right to post glowing judicial comments about his work on the firm’s website.”
