A federal appeals court issued a ruling yesterday that attorneys have a First Amendment right to publish ads that quote judges praising them, a decision that reverses a lower court ruling.
The case involves a New Jersey employment attorney, Andrew Dwyer, who initially published praise from two jurists on his website. The published quotes were excerpts from unpublished (but publicly available) judicial opinions. One of the judges sent Dwyer a letter requesting that his quote be removed from the website. Dwyer refused because he did not believe the quote was misleading or false.
The matter was forwarded to a committee of the New Jersey Bar, resulting in a proposed guideline that barred attorneys from using a quotation from a judge or court opinion regarding the attorney’s abilities or legal services. Dwyer argued that the new guideline was an unconstitutional ban on free speech.
Fast-forward to 2012, when the NJ Supreme Court approved an amended guideline saying that attorneys could use quotes from judges or opinions, but that the full text of the opinion must be used instead of excerpts.
Dwyer filed suit against the NJ Bar committee that developed the guideline before it went into effect and moved for a TRO and preliminary injunction to enjoin enforcement of the guideline. A NJ District Court denied the request. Both parties then filed cross-motions for summary judgment, which the District Court granted to the committee.
Dwyer then appealed and yesterday, the Third U.S. Circuit Court of Appeals ruled in his favor, calling the guideline “onerous” and saying that it imposed an unconstitutional burden on Dwyer:
“Guideline 3 as applied to Dwyer’s accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring Dwyer to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception.”
This decision could have farther-reaching effects in terms of how attorneys use testimonials in their advertising. Will certainly be interesting to watch!
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