The 3rd Circuit Rules In Favor of Attorney Advertising Free Speech

Andrew Dwyer is an attorney at the aptly named The Dwyer Law Firm, LLC, in New Jersey.  Mr. Dwyer had represented many employment litigation plaintiffs over the years, and as a result, had made several application to have his fees paid.  As a result, Judges had written many nice things about Mr. Dwyer and his legal abilities in various orders.

The NJSBACAA, not to be confused with the OWCA (Organization Without A Cool Acronym).

Mr. Dwyer decided to quote some of these nice comments about himself and his work and post them on his website.  Apparently, a judge that had written one of the comments became uncomfortable with the quote and asked that it be taken down.  When Mr. Dwyer refused, the issue came to the attention of the New Jersey State Bar Associations Committee on Attorney Advertising.  The NJSBACAA (certainly not a cool acronym) promulgated “Guideline 3,” which provided that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.”  An attorney was permitted to post the text of an entire judicial order or opinion.

Just before it became effective, Dwyer challenged Guideline 3 in Court.  He lost at the trial level, but the United State Court of Appeals for the 3rd Circuit reversed and held that Guideline 3 was unconstitutionally burdensome on Dwyer’s ability to advertise with accurate excerpts from judicial opinions.

The ABA Journal quoted Dwyer as follows:

For his part, Dwyer is pleased. “I’m obviously very gratified by the 3rd Circuit’s decision,” he says. “I thought the appeals court engaged in a conventional First Amendment analysis. There was not a shred of evidence that this rule was about protecting consumers from harm. Instead, this rule was about protecting the sensibilities of judges.”

Dwyer says he plans on putting quotes about himself from judicial opinions back on his website, but “we are waiting on the trial court to issue the order implementing the mandate from the 3rd Circuit and waiting to see if the state files a petition for writ of certiorari to the U.S. Supreme Court.”

Georgia probably does not have anything as restrictive as Guideline 3, but it does have a number of rules that attorneys should be aware of before advertising their services.  Not all of these rules are intuitive, and not all of them are focused on avoiding “misleading” advertising, though that is justification for each restriction or required disclosure.

Thus, it is important for every attorney that advertises in some way, including with a firm website, review the relevant rules.  The primary rules covering attorney advertising are covered in Georgia’s Rules of Professional Responsibility, Rule 7.2 and its comments.

I have assisted attorney in structuring advertisements and defended bar complaints with respect to these rules.  A word of advise — should you call upon the State Bar of Georgia’s ethics hotline for guidance, and you rely upon that guidance, always make sure to document the Bar’s recommendation in writing in some way.  The best way may be to send an mail to the person you spoke to.  The Bar gives very few formal advisory opinions each year.  So the Bar will not likely give you the advice in writing.  If you know the name of the person you spoke to, send that person an e-mail summarizing the conversation.  Then keep that e-mail for your records.  At the very least, make a memo of the conversation for your records.

I have seen situations where the attorney claimed his advertisement was consistent with what he was told in a phone call to the Bar, but the Bar later determined that it was not.  With no record of the conversation, the Bar was unwilling to find that its representative gave incorrect advice on the ethics hotline.  Without a written record, that position is not surprising.

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