Dwyer v. Cappell: Court upholds lawyer’s right to quote judges’ praise in website advertising

In advertising on your law firm website, wouldn’t you love to feature praise like this from judges?

[Your name here] is, I think, an exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me…

The inescapable conclusion is… that plaintiffs achieved a spect

acular result when the file was in the hands of [your name].

As recounted in a case handed down this fall, Dwyer v. Cappell, 762 F.3d 275 (3rd Cir. 2014), a New Jersey lawyer used quotations beginning with those words to promote his services on his law firm website. The quotations became a literal federal case because, despite the rather effusive language, the judges never intended the comments to be endorsements. The quotations were from judicial opinions in which the judges were giving their rationale for awarding attorney fees, an issue that required evaluation of the lawyer’s legal abilities and level of service provided in the cases. The judges were unaware that their comments would be used for advertising purposes.

When one of the judges discovered he had unwittingly become a pitchman, he asked the lawyer to remove the quotations, saying he feared potential clients would take them as blanket endorsements, which is not how he intended them. However, the lawyer refused to remove the statements, maintaining they were neither false nor misleading and thus complied with applicable state attorney ethics rules. Unsatisfied, the judge passed his concerns along to the New Jersey Bar’s Committee on Attorney Advertising. In direct response to this particular case, the committee drafted a guideline providing that “a]n attorney or law firm may not include, on a website or other advertisement, a quotation from a judge or court opinion (oral or written) regarding the attorney’s abilities or legal services.” In April 2013, the New Jersey Supreme Court approved the guideline after amending it to allow judicial opinions to be used in advertising, but only if the text of the entire opinion was included in the advertisement. In turn, the attorney filed a civil rights case in federal district court against the bar advertising committee.

The district court held that the guideline was not a restriction on speech, as argued by the lawyer, but rather a disclosure requirement, given that it allowed attorneys to use judicial remarks in their advertising provided they included the entire opinion for context. The court further found it “self-evident” that using a judicial quotation without context was inherently misleading. The court also held that the guideline was reasonably related to the state’s interest in preventing the deception of consumers and not unduly burdensome. The attorney took the case to the Third Circuit Court of Appeals.

Finding in favor of the lawyer, the Third Circuit ruled that it did not have to decide whether the bar guideline at issue was a restriction on speech or a disclosure requirement. In either case, the guideline was not reasonably related to the state’s interest in preventing consumer deception, was unduly burdensome, and thus violated the lawyer’s First Amendment right to advertise his services, the court held.

The Third Circuit also rejected the District Court’s conclusion that excerpted quotations are self-evidently misleading, noting that it was based on no evidence at trial that anyone had been or likely would have been misled. Although the Third Circuit held that it was unnecessary to decide whether to characterize the guideline as a disclosure requirement, the court remarked that to pass constitutional muster, a disclosure requirement must plausibly dispel the misleading nature of the advertisement to those who read it. The guideline in question did not require disclosure of anything that would dispel confusion, the court wrote. To the contrary, the guideline’s requirement that an entire judicial opinion be included in an advertisement might only add to a layperson’s confusion regarding an attorney’s services, the court stated. The Third Circuit even suggested its own language for a potential disclaimer to accompany such advertising: “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.”

The ethics of attorney advertising is not my area of legal expertise, and I am unaware of whether enterprising Washington lawyers are using judicial excerpts to advertise their services. I do note that the Washington Rules of Professional Conduct have no equivalent to the New Jersey guideline at issue (of course, neither did New Jersey until this case came along). The general Washington rule on “Communications Concerning a Lawyer’s Services,” RPC 7.1, states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment 3 to that rule elaborates:

An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

On the face of things, it would seem a Washington case with similar facts might boil down to similar issues as those addressed in Dwyer v. Cappell. But I’ll let someone else test the waters.

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