New Jersey Federal District Court states that lawyers may not post excerpts from judicial opinions complimenting the quality the lawyers’ work on their websites

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of a judge in the Federal District Court in New Jersey which upheld a New Jersey advertising Guideline which stated that a lawyer or law firm “may not include, on a website or other advertisement, 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.”  The opinion is Dwyer v. Cappell, Civil Case No. 12-3146 (FSH) (U.S. Dist. Ct. District of New Jersey) (June 26, 2013).  The federal court opinion is here: 

According to the federal judge’s opinion, a state judge sent correspondence in 2008 to a lawyer (Andrew Dwyer) requesting that the lawyer remove a quote from one of his judicial opinions from his law firm’s website within which he stated, inter alia, that the lawyer was an “exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me.”  The lawyer refused to remove it (for whatever reason) so the judge referred the matter to the New Jersey Committee on Attorney Advertising, which considers ethics issues and renders advisory opinions related to the state’s lawyer advertising rules for review.

On May 15, 2012, the New Jersey advertising committee issued Attorney Advertising Guideline 3, stating that “an attorney or law firm may not include, on a website or other advertisement, 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.”

The New Jersey Supreme Court adopted the Guideline and, in a comment published with the Guideline, noted that Rule 7.1(a) of the state’s Rules of Professional Conduct (which essentially follows the ABA Model Rules of Professional Conduct) prohibits misleading statements and “(t)he committee finds that such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials….(a)s such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of RPC 7.1(a).”  Guideline 3 and the comment are here:

Guideline 3 was to become effective on June 1, 2012; however, on May 30, 2012, the lawyer filed a complaint in the U.S. District Court for the District of New Jersey seeking to enjoin enforcement of Guideline 3 as an unconstitutional restriction on his First Amendment free speech rights.  The opinion states that “Guideline 3 is not a ban on speech but is instead a disclosure requirement, because it requires full disclosure of a judicial opinion.” Further, Guideline 3 met the reasonableness test set out by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), wherein the Court found that a disclosure requirement on attorney advertising speech is constitutional as long as it is reasonably related to the state’s interests in preventing consumer deception.

According to the opinion, “(a) judicial quotation’s potential to mislead a consumer is self-evident (and)…(w)ithout the surrounding context of a full opinion, judicial quotations relating to an attorney’s abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system.” 

The opinion concluded that “the disclosure requirements of Guideline 3 are reasonably related to the state’s interest in preventing the deception of consumers and preserving public confidence in the impartiality of the judiciary; moreover, Guideline 3’s requirements are not unduly burdensome, as they simply require the full context surrounding a judge’s evaluation of a lawyer.”

Bottom line:  This opinion (and the NJ Guideline) seems to stretch the meaning of “disclosure” and the advertising restriction/disclosure seems somewhat over the top since it assumes that someone could be “misled” by an accurate quote from a judicial opinion.  I am also not entirely sure why the judge was upset and why the lawyer didn’t just take the quote down.

Let’s be careful out there.                     

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670


About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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