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Third Circuit Rules It’s Alright to Use Praises from Judges as Testimonials on Lawyer Websites

08/13/14

Third Circuit Rules It's Alright to Use Praises from Judges as Testimonials on Lawyer Websites


In an opinion that can have far reaching implications (including judges becoming parsimonious with their praises of outstanding work by attorneys) the U.S. Court of Appeals for the 3rd Circuit has ruled in response of an appeal on the issue that it is perfectly alright for lawyers to use praises for their work made by judges as testimonials of their work quality.

In the recent matter, attorney Andrew Dwyer a workplace discrimination attorney and the Dwyer Law Firm LLC had published on their website complimentary remarks received in the course of legal work in separate judicial opinions. One of the judges, Judge Wertheimer, objected to this and requested Dwyer by letter to remove his quoted comments from the website. The judge remarked in his letter that he did "not have reason to doubt the accuracy of the verbiage," but he "would not care for potential clients [of Dwyer] to believe that it is a blanket endorsement" of him.

When Dwyer refused to take down the excerpt the matter went before the Attorney Advertising Committee of the New Jersey Bar. Subsequently, the Committee proposed a change in attorney advertising guidelines to which Dwyer objected, but finally an amended version of the Guideline 3 was approved by the New Jersey Supreme Court in 2012. Guideline 3 did not entirely prohibit lawyers from publishing praises made by judges as testimonials but mandated that such testimonials be accompanied by full text of the judicial opinions in its final form. This made the entire objective of publishing testimonials cumbersome and meaningless for lawyers like Dwyer.

In its comment to the rule change, the New Jersey Supreme Court reasoned, "[Rule of Professional Conduct] 7.1(a) prohibits misleading statements. When a judge discusses an attorney's legal abilities in an opinion, such as in a fee-shifting or division-of-fee case, the judge is setting forth findings of fact and conclusions of law pertinent to the decision in the matter. The judge is not personally endorsing the attorney or making a public statement about the attorney for advertising purposes." The court had observed further, "In fact, judges are expressly prohibited from endorsing attorneys or providing testimonials regarding attorneys."

Dwyer went to court arguing the guideline is an unconstitutional infringement on speech.

He lost in the district court, but in the recent opinion, the Third Circuit Court of Appeals reversed the decision of the lower court accepting Dwyer's arguments that Guideline 3 infringed on his free speech rights.

In its opinion, the Third Circuit Court of Appeals commented, "there was once a time when attorney advertising could be proscribed without justification, it is now settled that such advertising is "a form of commercial speech, protected by the First Amendment, and … 'may not be subjected to blanket suppression.'""

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