Lawyer Wins 1st Amendment Claim in Attorney Advertising Case

New Jersey attorney Andrew Dwyer's practice is focused on representing employees in matters of employment law, and in cases where judges had to assess his legal services, in the context of fee shifting statutes, many judges praised his work.

But what started out as praise turned into a conflict with New Jersey's Committee on Attorney Advertising. Read on to see why the Third Circuit ruled that the Committee violated his First Amendment rights.

New Jersey Guideline 3

Andrew Dwyer included several quotes from judges on his website, including one by Judge William Wertheimer who stated in relevant part, "plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer." Judge Wertheimer asked Dwyer to remove the quote because he didn't want potential clients to read it as a "blanket endorsement." Dwyer refused.

In response, the New Jersey Bar Committee adopted Guideline 3 in 2012, which prohibits attorney advertising from including judges' quotes, unless the "full text of the opinion" is included on the website or ad. Dwyer removed the quotes, and sought declaratory and injunctive relief in federal court under 42 U.S.C. § 1983.

Disclosure or Prohibition?

The U.S. District Court for the District of New Jersey had to determine whether to characterize Guideline 3 as a disclosure requirement or prohibition of speech; the characterization would determine what level of scrutiny the court should apply. Since Guideline 3 required the entire judicial opinion, the court held that it is "not a ban on speech but is instead a disclosure requirement."

As such, the district court applied the test set forth by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel, which requires Guideline 3 be "'reasonably related to the [S]tate's interest in preventing the deception of consumers' and was not 'unduly burdensome.'" Under the Zauderer standard (and even under the stricter standard), the district court found Guideline 3 constitutional, and Dwyer appealed.

Undue Burden

The Third Circuit took an entirely different view, and didn't decide whether Guideline 3 is a disclosure requirement or prohibition. Instead, the court held that Guideline 3 fails constitutional muster, as applied to Dwyer and his firm, because it is unduly burdensome and is "not reasonably related to preventing consumer deception." The court noted that requiring inclusion of the entire opinion "may add only greater confusion" and found that the alleged "deceptiveness of accurately transcribed statements made by judges in judicial opinion excerpts is far from 'self-evident.'"

The Third Circuit's decision is "consistent with decisions by the Second, Fifth and Eleventh Circuits," reports the ABA Journal. For now, Dwyer intends to put the judicial quotes back up on his website and stated, "I'm very gratified by this decision," reports The Wall Street Journal. Whether the New Jersey Bar Committee will appeal or seek rehearing en banc remains to be seen.

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Related Resources:

• 3rd Cir. Re-Examines 1st Amendment True Threat Exception (FindLaw's U.S. Third Circuit Blog)
• Religion in Schools -- Permissible Prohibition or Free Speech Violation? (FindLaw's U.S. Third Circuit Blog)
• 'I Heart Boobies' Campaign Protected Student Speech, Says 3rd Cir (FindLaw's U.S. Third Circuit Blog)