Dwyer v. Cappell

• Decision Date: 11 August 2014
• Docket Number: No. 13–3235.,13–3235.
• Citation: 762 F.3d 275
• Parties: Andrew DWYER; The Dwyer Law Firm, LLC, Appellants v. Cynthia A. CAPPELL, in her official capacity as the Chair of the Supreme Court of New Jersey Committee on Attorney Advertising; Jonathan M. Korn, in his official capacity as the Vice Chair of the Supreme Court of New Jersey Committee on Attorney Advertising; Frank L. Corrado, in his official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Elizabeth Y. Fuerst, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Sheryl Mintz Goski, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Amirali Y. Haidri, in his official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Nora Poliakoff, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Carol Johnston, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising.
• Court: U.S. Court of Appeals — Third Circuit

762 F.3d 275

Andrew DWYER; The Dwyer Law Firm, LLC, Appellants

v.Cynthia A. CAPPELL, in her official capacity as the Chair of the Supreme Court of New Jersey Committee on Attorney Advertising; Jonathan M. Korn, in his official capacity as the Vice Chair of the Supreme Court of New Jersey Committee on Attorney Advertising; Frank L. Corrado, in his official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Elizabeth Y. Fuerst, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Sheryl Mintz Goski, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Amirali Y. Haidri, in his official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Nora Poliakoff, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising; Carol Johnston, in her official capacity as a member of the Supreme Court of New Jersey Committee on Attorney Advertising.

No. 13–3235.

United States Court of Appeals, Third Circuit.

Argued Feb. 18, 2014.

Opinion filed: Aug. 11, 2014.

Andrew W. Dwyer, Esquire (Argued), The Dwyer Law Firm, Newark, NJ, Counsel for Appellants.

John J. Hoffman, Acting Attorney General of New Jersey, Lisa A. Puglisi, Assistant Attorney General, Susan M. Scott (Argued), Deputy Attorney General, Office of Attorney General of New Jersey, Department of Law and Public Safety, Trenton, NJ, Counsel for Appellees.

Before: AMBRO, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Attorney Andrew Dwyer, lauded by New Jersey judges in separate judicial opinions, published on his law firm's website those complimentary remarks. One of the judges objected to this, and ultimately the New Jersey Supreme Court adopted an attorney-conduct guideline that bans advertising with quotations from judicial opinions unless the opinions appear in full. Is the guideline an unconstitutional infringement on speech as applied to the advertisements of Mr. Dwyer and his firm? We believe it is and thus reverse the contrary decision of the District Court.

I. FACTS AND PROCEDURAL HISTORY

In 2007, Dwyer ¹ launched a website, www. thedwyer lawfirm. com. Its home page greeted potential clients with the following prominently displayed advertisement:

“Are You Thinking Of Suing Your Employer?”

“Mr. Dwyer is, I think, an exceptional lawyer, one of the most exceptional lawyers I've had the pleasure of appearing before me. He is 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....”

—Hon. Jose L. Fuentes, J.S.C.

“The inescapable conclusion is ... that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer.... Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved.”

—Hon. William L. Wertheimer, J.S.C.

The excerpts are from unpublished (though presumably public) judicial opinions concerning fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination. They were made in the context of the statute's fee-shifting provisions, which require judges to assess the abilities and legal services of plaintiffs' attorneys.

By letter to Dwyer in April 2008, Judge Wertheimer requested that his quoted comments be removed from the website. The Judge explained that, although he did “not have reason to doubt the accuracy of the verbiage,” he “would not care for potential clients [of Dwyer] to believe that it is a blanket endorsement” of him. Dwyer refused to take the excerpt down because he did not believe the language was false or misleading. Subsequently, Judge Wertheimer's letter and Dwyer's response were forwarded to the New Jersey Bar's Committee on Attorney Advertising (the “Committee”), whose members are the defendants-appellees before us.

In February 2009, after several meetings and after receiving submissions from Dwyer, the Committee published a Notice to the Bar soliciting comments on a proposed attorney advertising guideline (the “Proposed Guideline”). It provided 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.” Dwyer submitted a comment in which he argued that the Proposed Guideline was an unconstitutional ban on speech. In addition, while the Proposed Guideline was pending, Dwyer added to the website a third excerpt from an unpublished opinion concerning a fee application in a suit under the New Jersey Conscientious Employee Protection Act:

“Based upon my observations of [Dwyer] in court there's no question in my mind that he is in the upper echelon of employment lawyers in this state....”

—Hon. Douglas H. Hurd, J.S.C.

Three years later, in May 2012, the New Jersey Supreme Court approved an amended version of the Proposed Guideline, now called Guideline 3. It differs from the Proposed Guideline in one respect: whereas the Proposed Guideline simply banned advertising with quotes from judges or judicial opinions, Guideline 3 bans those ads but allows attorneys to advertise with the full text of judicial opinions. In its final form, Guideline 3 provides:

Attorney Advertisements: Use of Quotations or Excerpts From Judicial Opinions About the Legal Abilities of an Attorney

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 official comment to Guideline 3 demonstrates that it was promulgated to target Dwyer's website specifically:

This Guideline arises from the review by the Committee on Attorney Advertising of an attorney's website that included two quotations from judges about the attorney's legal abilities. The quotations were from unpublished opinions of the judges on fee applications and the judges' names and titles were included in the advertisement.

[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. In fact, judges are expressly prohibited from endorsing attorneys or providing testimonials regarding attorneys. The 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. As such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of [Rule of Professional Conduct] 7.1(a).

The day before Guideline 3 went into effect Dwyer filed this action in the District of New Jersey seeking injunctive and declaratory relief under 42 U.S.C. § 1983. He simultaneously moved for a temporary restraining order and preliminary injunction to enjoin enforcement of the Guideline. See Dwyer v. Cappell, 951 F.Supp.2d 670, 671 n. 1 (D.N.J.2013). The District Court denied the request for a temporary restraining order and set a full briefing schedule for the preliminary injunction motion. See id. The parties then filed cross-motions for summary judgment, which the District Court considered concurrently with the motion for a preliminary injunction. Id.

During discovery, Dwyer deposed Carol Johnston, the designated agent for the Committee. Ms. Johnston testified that the excerpts on Dwyer's website violated Guideline 3. She claimed that, even if the quotations include hyperlinks to the full text of the judicial opinions, they would still violate the Guideline. She also testified that, although the Committee had no evidence demonstrating that the excerpts misled potential clients, based on “common sense” it had concluded that excerpts from judicial opinions regarding attorneys' abilities are inherently misleading. Aside from Judge Wertheimer, there have been no complaints about Mr. Dwyer's website, and no one has claimed being misled by the judicial excerpts.

The District Court granted the Committee's summary judgment motion, denied Dwyer's motion for summary judgment, and denied as moot his motion for a preliminary injunction. See id. at 675–76. It explained that “[t]he core of the parties' dispute is the legal issue of whether Guideline 3 is most appropriately characterized as a ‘restriction’ on speech, or whether it instead is a regulatory requirement of ‘additional disclosure.’ ” Id. at 673. The Court concluded that “because [Guideline 3] requires full disclosure of a judicial opinion,” it is “not a ban on speech but is instead a disclosure requirement.” Id. at 674. Moreover, it held that a judicial quotation's potential to mislead is “self-evident” because, “[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.” Id. at 674–75.

The District Court applied the test for disclosure requirements set in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, ...