A federal judge on Wednesday upheld as constitutional an attorney advertising guideline that restricts use of testimonials from judicial opinions.
U.S. District Judge Faith Hochberg in Newark found that Guideline 3 did not violate the right to free speech and granted summary judgment dismissing the complaint in Dwyer v. Cappell, 12-cv-3146.
Hochberg determined that the guideline was not a ban on speech but merely a regulation requiring additional disclosure.
The guideline bars lawyers from using quotes or excerpts from oral or written opinions about a lawyer's abilities or services on a website or other advertisement unless the opinion's full text is presented.
Without the context, "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," Hochberg wrote.
Guideline 3 was promulgated by the Committee on Attorney Advertising, whose members are appointed by the New Jersey Supreme Court. They are named as defendants, along with committee secretary Carol Johnston.
The plaintiff, Andrew Dwyer, an employment lawyer with the Dwyer Law Firm in Newark, challenged the guideline on May 30, 2012, just before its June 1, 2012, effective date. He sought a temporary restraining order, which Hochberg denied.
Two of the three quotes at issue had been posted on his firm's homepage since its inception in 2007. The display of the Superior Court encomiums led to the guideline's adoption.
One, from Hudson County Judge Jose Fuentes, now on the Appellate Division, described Dwyer as "one of the most exceptional lawyers I've had the pleasure of appearing before me."
Fuentes further stated that Dwyer was "tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position, but no one can fault his zeal and his loyalty to his client, and no one can question his intellect."
In the other, Union County Judge William Wertheimer said Dwyer achieved a "spectacular result" for his client and termed him a "fierce, if sometimes not disinterested advocate."
In April 2008, Wertheimer wrote to Dwyer, asking him remove the quote, but Dwyer refused, leading Union County Assignment Judge Walter Barisonek to contact the committee.
As initially proposed in 2009, Guideline 3 prohibited use of judicial quotes in any circumstances.
Three years later, after public comment and over Dwyer's First Amendment objections, the guideline was adopted.
Accompanying commentary said quotations or excerpts from judicial opinions in attorney advertising were inherently misleading in violation of ethics rules.
In the interim, Dwyer had added a third quote, from Mercer County Judge Douglas Hurd: "Based upon my observations of him in court there's no question in my mind that he is in the upper echelon of employment lawyers in this state."
In her ruling, Hochberg noted that the guideline "allows publication of all the content sought to be published within a judicial quotation, albeit within its full context."
As a disclosure requirement on commercial speech, the guideline passed constitutional muster under the standard articulated by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), which required a reasonable relationship to the government's interest in "preventing deception of consumers," ruled Hochberg.
She called it "self-evident" that a consumer could be misled by a quote from a judge, rejecting Dwyer's argument that there had to be an empirical basis for such a finding, such as a consumer survey or anecdotal evidence that someone was misled.
Johnston testified on behalf of the committee that the sole basis for its decision that judges' quotes taken out of context were inherently misleading was "common sense," which Hochberg found sufficient.
The state's interest in preventing the presentation of potentially misleading information to the public was especially compelling for information related to a judge, she added.
Nor was requiring that the quote be shown in the context of the entire opinion unduly burdensome.
It "allows a consumer to have more complete information and prevents the perception of an improper judicial endorsement," Hochberg said.
Thus, the restriction was reasonably related to the interests in "preventing the deception of consumers and preserving public confidence in the impartiality of the judiciary," Hochberg concluded.
She rejected Dwyer's analogy to client testimonials, which are allowed if accompanied by a disclaimer.
Those accolades are distinguishable because they are not barred by ethics rules, unlike judicial endorsements, and are voluntary, while judges, in fee rulings like those quoted by Dwyer, must evaluate a lawyer's abilities, she said.
Dwyer says he expected the outcome and is happy to have a ruling he can now take to the U.S. Court of Appeals for the Third Circuit.
He says Hochberg should have applied the intermediate scrutiny for restrictions on speech, which must be narrowly tailored and further an important government interest.
The judge stated in a footnote, however, that the guideline would have survived that stricter test.
Dwyer says the only way to present the full judicial opinion is through a hyperlink, but Johnston testified that, too, would violate the guideline.
"If I can't quote from an opinion, it's a restriction on speech," says Dwyer, adding that no state has imposed similar limits on attorney advertising.
Committee chairwoman Cynthia Cappell, a Hackensack solo, did not return a call.
The judiciary declined comment, through spokeswoman Tamara Kendig.