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August 12, 2014
  Dwyer v. Cappell--Third Circuit
Headline: Third Circuit Holds that New Jersey Supreme Court Guideline Limiting Dwyer Law Firm's Use of Court Opinion Quotations Lauding His Performance is Unconstitutional Infringement on Speech

Area of Law: First Amendment

Issues Presented: Is New Jersey Supreme Court Guideline 3, which prohibits use of quotations from court opinions about an attorney's abilities or legal services on websites or other advertisements outside the context of the full opinion, an unconstitutional infringement on speech as applied to Andrew Dwyer and his firm?

Brief Summary: Andrew Dwyer posted three excerpted quotations from judicial opinions which addressed his performance as attorney on his firm's website. In response, the New Jersey Bar's Committee on Attorney Advertising promulgated, and the New Jersey Supreme Court approved, Guideline 3, which prohibited quotations from court opinions about an attorney's abilities or legal services from websites or other advertisements outside the context of the full opinion. Dwyer filed a 1983 action, calling Guideline 3 an unconstitutional restriction on speech. The District Court found that Guideline 3 was not a restriction on speech, but a disclosure requirement, because it was "self-evident" that a judicial quotation without context was inherently misleading. It also found that Guideline 3 was "reasonably related to the [S]tate's interest in preventing the deception of consumers" and was not "unduly burdensome." On appeal, the Third Circuit found that it did not have to reach the question of whether Guideline 3 was a restriction on speech or a disclosure requirement because it was not reasonably related to preventing consumer deception and was unduly burdensome, and thus failed even the lower scrutiny hurdle assigned to disclosure requirements. It reversed the District Court's decision and remanded the case.


Extended Summary: This case addresses a New Jersey Supreme Court Guideline 3, which prohibits quotations from court opinions about an attorney's abilities or legal services from websites or other advertisements. This guideline came about in direct response to the website of Andrew Dwyer and The Dwyer Firm, L.L.C. (Dwyer) - www.thedwyerlawfirm.com - which went online in 2007. On the home page of the site, two quotations from unpublished opinions by the Honorable Jose L. Fuentes, J.S.C. and the Honorable William L. Wertheimer, J.S.C. were featured prominently. The quotations were "made in the context of the [New Jersey Law Against Discrimination's] fee-shifting provisions, which require judges to assess the abilities and legal services of plaintiffs' attorneys."

Judge Wertheimer sent Dwyer a letter in April of 2008 requesting that he take his quotation down for fear potential clients would interpret it as a blanket endorsement. Dwyer refused on that grounds that the language, as presented, was neither false nor misleading. Judge Wertheimer then forwarded his letter and Dwyer's response to the New Jersey Bar's Committee on Attorney Advertising (the Committee). In February of 2009 the Committee published a Proposed Guideline providing that, "[a]n attorney or law firm may not include, on a website or other advertisement, a quotation from a judge or court opinion (oral or written) regarding the attorney's abilities or legal services."
In response to this Proposed Guideline, Dwyer added a third quotation from an opinion by the Honorable Douglas H. Hurd, J.S.C. to his website. He also submitted a comment on the Proposed Guideline calling it an unconstitutional ban on speech. In April 2013 the New Jersey Supreme Court approved Guideline 3 after amending it to allow for advertising with the full text of judicial opinions. The official comment to the guideline made clear that it was promulgated in direct response to Dwyer's website.
Dwyer filed a 1983 action seeking injunctive and declaratory relief. He also moved for a temporary restraining order and preliminary injunction to enjoin enforcement of the Guideline. The District Court denied the request for a temporary restraining order and set a full briefing schedule for the preliminary injunction motion. An agent for the Committee testified that: quotations with hyperlinks to the full opinion would still violate Guideline 3; it had no evidence that the excerpts misled potential clients, rather it had deduced that based on "common sense;" and that, aside from Judge Wertheimer, no one had complained of being misled by the excerpts.
On cross-motions for summary judgment, the District Court held that Guideline 3 was not a restriction on speech, but a disclosure requirement, because did not ban an attorney from posting judicial evaluations of performance, but merely required that the attorney provide the entire opinion for context. Further, it held as "self-evident" that a judicial quotation without context was inherently misleading. Finally, the District Court evaluated Guideline 3 under the Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio test for disclosure requirements, finding that it was "reasonably related to the [S]tate's interest in preventing the deception of consumers" and was not "unduly burdensome." Dwyer appealed these decisions as applied to himself and his firm.

On appeal both parties agreed that the attorney advertising in question was commercial speech which is "entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded noncommercial speech," and cannot be subjected to "blanket suppression." The Third Circuit addressed both possible analytical tracks proposed by the District Court: restrictions on speech and disclosure requirements. The Committee maintained that Guideline 3 was merely a disclosure requirement subject to the scrutiny outlined in Zauderer, while Dwyer argued that it was a restriction on non-misleading speech and should be subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission.

Zauderer applies a lower standard of scrutiny to disclosure requirements. Disclosure requirements must only be "reasonably related to the State's interest in preventing deception of consumers," but must not impose an unjustified or undue burden. This, the Third Circuit said, is because the Supreme Court has shown a marked preference for disclosure requirements to outright prohibition as a remedy for potentially misleading speech, especially in the attorney advertising context, "because the public lacks sophistication concerning legal services, advertising by attorneys poses special risks of deception."

The Third Circuit found that it did not have to reach the question of whether Guideline 3 was a restriction on speech or a disclosure requirement because it was not reasonably related to preventing consumer deception and was unduly burdensome, and thus failed even the lower scrutiny hurdle. It said that the District Court hyperbolized that the excerpts prohibited by Guideline 3 were inherently misleading and that, even if they were to some people, the Committee failed to show that providing the full opinions would dispel the potential deception.

To be reasonably related to a state's interest in preventing deception of consumers, a disclosure requirement must plausibly dispel the misleading nature of the advertisement to those who read it. Guideline 3, the court said, does not require disclosing anything that would dispel confusion, and further, providing the full opinion to a layperson might only add to potential confusion. The court then provided a more reasonable disclosure requirement in the statement, "This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities."

The Supreme Court, in Ibanez v. Fla. Dep't of Bus. & Prof. Reg., Bd. of Accountancy, clarified that a disclosure requirement is unduly burdensome when the required disclosure is so lengthy that is "effectively rules out" the desired advertising. The Third Circuit found that Guideline 3 effectively ruled out the possibility that Dwyer could use even an accurately quoted excerpt from a judicial opinion on his abilities given the length of full judicial opinions and the preclusion of using hyperlinks.
The court also noted that if the intent behind Guideline 3 was to "make it so burdensome to quote judicial opinions that attorneys will cease doing so," that would constitute a restriction on speech and be subject to Central Hudson intermediate scrutiny. The court also noted, in a footnote, that though Dwyer's challenge was directly related to his website, the effect of Guideline 3 is "all the more stark" when applied to attorney advertising in a newspaper, a magazine, on television, or on the radio. However, the court did not reach whether Guideline 3 potential restriction would be valid in other cases. Because it was not reasonably related to the state's interest in preventing consumer deception, and was unduly burdensome to Dwyer, the court held that it violated his First Amendment right to advertise his services.
To read the full opinion, please visit: http://www2.ca3.uscourts.gov/opinarch/133235p.pdf.

Panel (if known): Ambro, Hardiman, and Greenway, Jr., Circuit Judges

Argument Date: February 18, 2014

Date of Issued Opinion: August 11, 2014

Docket Number: No. 13-3235

Decided: Reversed and remanded

Case Alert Author: Aaron Spencer

Counsel: Counsel for the Appellants: Andrew W. Dwyer, Esquire (Argued); Counsel for the Appellees: John J. Hoffman, Acting Attorney General of New Jersey; Lisa A. Puglisi, Assistant Attorney General; Susan M. Scott (Argued), Deputy Attorney General

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/12/2014 02:01 PM     3rd Circuit  

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