Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of a judge in the Federal District Court in New Jersey which upheld a New Jersey advertising Guideline which stated that a lawyer or law firm “may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.” The opinion is Dwyer v. Cappell, Civil Case No. 12-3146 (FSH) (U.S. Dist. Ct. District of New Jersey) (June 26, 2013). The federal court opinion is here: http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2012cv03146/274778/48/0.pdf?ts=1372347583
According to the federal judge’s opinion, a state judge sent correspondence in 2008 to a lawyer (Andrew Dwyer) requesting that the lawyer remove a quote from one of his judicial opinions from his law firm’s website within which he stated, inter alia, that the lawyer was an “exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me.” The lawyer refused to remove it (for whatever reason) so the judge referred the matter to the New Jersey Committee on Attorney Advertising, which considers ethics issues and renders advisory opinions related to the state’s lawyer advertising rules for review.
On May 15, 2012, the New Jersey advertising committee issued Attorney Advertising Guideline 3, stating that “an attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”
The New Jersey Supreme Court adopted the Guideline and, in a comment published with the Guideline, noted that Rule 7.1(a) of the state’s Rules of Professional Conduct (which essentially follows the ABA Model Rules of Professional Conduct) prohibits misleading statements and “(t)he committee finds that such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials….(a)s such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of RPC 7.1(a).” Guideline 3 and the comment are here: http://www.judiciary.state.nj.us/notices/2012/n120518a.pdf
Guideline 3 was to become effective on June 1, 2012; however, on May 30, 2012, the lawyer filed a complaint in the U.S. District Court for the District of New Jersey seeking to enjoin enforcement of Guideline 3 as an unconstitutional restriction on his First Amendment free speech rights. The opinion states that “Guideline 3 is not a ban on speech but is instead a disclosure requirement, because it requires full disclosure of a judicial opinion.” Further, Guideline 3 met the reasonableness test set out by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), wherein the Court found that a disclosure requirement on attorney advertising speech is constitutional as long as it is reasonably related to the state’s interests in preventing consumer deception.
According to the opinion, “(a) judicial quotation’s potential to mislead a consumer is self-evident (and)…(w)ithout 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.”
The opinion concluded that “the disclosure requirements of Guideline 3 are reasonably related to the state’s interest in preventing the deception of consumers and preserving public confidence in the impartiality of the judiciary; moreover, Guideline 3’s requirements are not unduly burdensome, as they simply require the full context surrounding a judge’s evaluation of a lawyer.”
Bottom line: This opinion (and the NJ Guideline) seems to stretch the meaning of “disclosure” and the advertising restriction/disclosure seems somewhat over the top since it assumes that someone could be “misled” by an accurate quote from a judicial opinion. I am also not entirely sure why the judge was upset and why the lawyer didn’t just take the quote down.
Let’s be careful out there.
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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