Andrew Dwyer v. Cynthia Cappell
762 F.3d 275, 112 U.S.P.Q. 2d (BNA) 1140, 2014 WL 3893001 (2014)
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Rule of Law:
A state attorney advertising guideline requiring the full text of a judicial opinion to be published alongside any excerpt from it violates the First Amendment if the requirement is not reasonably related to preventing consumer deception and is unduly burdensome, thereby chilling protected commercial speech.
Facts:
- Attorney Andrew Dwyer launched a law firm website that prominently featured accurate, complimentary quotations about his legal abilities from three different New Jersey state judges.
- The quotations were taken from unpublished judicial opinions concerning fee applications in cases Dwyer had litigated, where judges are required to assess attorney performance.
- One of the quoted judges, Hon. William L. Wertheimer, wrote to Dwyer requesting the removal of his comment, expressing concern that potential clients might view it as a 'blanket endorsement.'
- Dwyer refused to remove the quote, asserting his belief that the language was not false or misleading.
- In response to this situation, and specifically targeting Dwyer's website, the New Jersey Supreme Court adopted Guideline 3.
- Guideline 3 prohibits attorneys from including a quotation or excerpt from a court opinion about their abilities in an advertisement, unless the attorney presents the full text of the opinion.
Procedural Posture:
- After Dwyer refused Judge Wertheimer's request, the matter was forwarded to the New Jersey Bar's Committee on Attorney Advertising.
- The Committee developed, and the New Jersey Supreme Court subsequently adopted, Guideline 3 regulating the use of judicial quotes in attorney ads.
- Dwyer filed an action in the U.S. District Court for the District of New Jersey against the Committee (appellees), seeking to enjoin enforcement of Guideline 3.
- The parties filed cross-motions for summary judgment.
- The District Court granted summary judgment for the Committee, upholding Guideline 3 as a constitutional disclosure requirement under the Zauderer test.
- Dwyer (appellant) appealed the District Court's grant of summary judgment to the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does a New Jersey attorney advertising guideline, which prohibits attorneys from using excerpts from judicial opinions in advertisements unless the full text of the opinion is also included, unconstitutionally infringe on an attorney's First Amendment free speech rights as applied to accurate quotations on the attorney's website?
Opinions:
Majority - Ambro, Circuit Judge
Yes. The New Jersey attorney advertising guideline unconstitutionally infringes on Dwyer's First Amendment rights because it fails even the less-stringent scrutiny applied to commercial speech disclosure requirements. The court determined that it did not need to decide whether the guideline was a speech restriction (subject to Central Hudson intermediate scrutiny) or a disclosure requirement (subject to Zauderer scrutiny) because it failed the more lenient Zauderer test. The guideline is not 'reasonably related' to the state's interest in preventing deception; requiring the full opinion does not clarify that an excerpt is not an endorsement and may instead cause greater confusion. Furthermore, the guideline is 'unduly burdensome' because the requirement to post a full judicial opinion is so onerous that it 'effectively rules out' the use of accurate judicial excerpts in advertising, thereby chilling protected commercial speech. Citing Ibanez, the court found the requirement far more burdensome than other disclosure rules that have been struck down.
Analysis:
This decision reinforces that even regulations on commercial speech styled as disclosure requirements must be carefully tailored to survive First Amendment scrutiny. It establishes that a state's interest in preventing potentially misleading attorney advertising does not justify imposing regulations that are both ineffective at curing the alleged deception and so burdensome that they effectively ban the speech. The court's analysis signals a preference for less restrictive alternatives, such as simple disclaimers, over cumbersome requirements that chill truthful advertising. This ruling provides a strong precedent for challenging state bar regulations that broadly restrict attorney advertising without a clear and proportionate connection to preventing actual consumer harm.
