Dwyer v. Cappell, 762 F.3d 275 (3d Cir. 2014). Andrew Dwyer is a lawyer who handles plaintiffs’ employment law litigation. Evidently, some judges have said favorable things about him in opinions that awarded him fees under the New Jersey Law Against Discrimination, which provides for fee-shifting in favor of successful plaintiffs. Dwyer posted some of those positive comments on his law firm’s website. One of those judges learned that his comment about Dwyer had been posted and asked that it be taken down. The judge was concerned that his remark might be seen as a “blanket endorsement” of Dwyer by the judge. Dwyer declined to remove the quote from the website.
The judge’s request and Dwyer’s response were brought to the attention of the Supreme Court’s Committee on Attorney Advertising. Apparently as a result of the Dwyer situation (though other lawyers or firms had put favorable comments from judges on their websites too), the Supreme Court approved a Guideline (“Guideline 3”), based largely on a version proposed by the Committee, that forbade attorneys or law firms from including in advertisements or on websites “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.” A comment to Guideline 3 stated the concern that quotations or excerpts from judicial opinions, when taken out of the full context of those opinions, could be seen as improper judicial endorsement of attorneys, an “inherently misleading” statement that would violate Rule of Professional Conduct 7.1(a) (banning misleading statements in attorney advertising).
Dwyer sued the Committee members in federal court, in their official capacities, to enjoin enforcement of Guideline 3 and for a declaration that the Guideline was invalid. The district court granted summary judgment to defendants and denied Dwyer’s motion for summary judgment and his demand for an injunction. The district court concluded that Guideline 3 was “not a ban on speech but instead [was] a disclosure requirement,” in that it simply required the full judicial opinion from which an excerpt came to be published. The court applied the test for disclosure requirements contained in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). Under that test, a disclosure requirement is valid if it is “reasonably related to the [S[tate’s interest in preventing the deception of consumers” and was not “unduly burdensome.” Finding that standard satisfied, the district court held that Guideline 3 was constitutional. The court also said that even if the somewhat more rigorous test applicable to restrictions on commercial speech applied, the Guideline would still pass constitutional muster.
Dwyer appealed and the Third Circuit, applying the de novo standard of review applicable to the grant of summary judgment, reversed in an opinion by Judge Ambro. The panel found that Guideline 3 failed even the Zauderer test. “Even were we to assume that excerpts of judicial opinions are potentially misleading to some persons, the Committee fails to explain how Dwyer’s providing a complete judicial opinion dispels this assumed threat of deception…. Providing a full judicial opinion does not reveal to a potential client that an excerpt of the same opinion is not an endorsement. Indeed, providing the full opinion may add only greater confusion.”
Moreover, Guideline 3 was unduly burdensome. Citing a post-Zauderer Supreme Court case and a decision of the Fifth Circuit, Judge Ambro said that a required disclosure is unduly burdensome when it is “so lengthy that it effectively rules out advertising by the desired means.” Requiring publication of a full judicial opinion (Judge Ambro observed that even a hyperlink would not satisfy Guideline 3) in an advertisement, or even on a website, “with its theoretically endless capacity,” was “so cumbersome that it effectively nullifies the advertisement.”
Accordingly, Guideline 3 was held unconstitutional. The panel did not, however, leave the Committee unable to regulate the use of excerpts from judicial opinions. In dicta, Judge Ambro stated that “[a] reasonable attempt at a disclosure requirement might mandate a statement such as ‘This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.’ Such a statement or its analogue would, we believe, likely suffice under Zauderer.” Watch for the Committee perhaps to adopt a new Guideline using such language, followed (potentially) by a challenge asserting that, regardless of its compliance with Zauderer, such a guideline is a restriction on commercial speech that fails the more stringent test applicable to regulations on such speech. The panel in this case had no occasion to reach the commercial speech issue, relying as it did on the conclusion that Guideline 3 failed even the less rigorous Zauderer standard.