A New Jersey lawyer’s website featured excerpts from unpublished opinions that complimented the lawyer’s work. A federal judge asked the lawyer to remove the testimonial and the lawyer refused. The judge then referred the matter to the New Jersey Committee on Attorney Advertising. Thereafter, the Committee issued a guideline prohibiting attorneys from posting excerpts of opinions on their websites, but allowing them to post entire opinions, on the basis that the rule was necessary to prevent misleading advertising. (NJ, Attorney Advertising Guideline 3). The lawyer then sued in the U.S. District Court for the District of New Jersey, arguing that the guideline was unconstitutional.
On June 26, 2013, the District Court upheld the guideline, holding that it “is not a ban on speech but is instead a disclosure requirement.” The court found that the requirement was reasonable under the test outlined by the Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), which requires that “disclosure requirements [be] reasonably related to the State’s interest in preventing deception of consumers” and that they not be “unduly burdensome.”
An ABA Journal article (“Unshared Compliments, by David Hudson Jr.) quotes Richard T. Kaplar, vice president of Media Institute in Arlington, VA, who says that the opinion provides no explanation as to why the requirement to post the entire opinion, and disallowing excerpts, is not unduly burdensome. Kaplar futher states that “Guideline 3 appears to be a de facto restriction on speech masquerading as a disclosure requirement.”
The lawyer plans to appeal the ruling to the Third Circuit.
UPDATE (11/18/13): WSJ discusses the lawyer’s appeal – http://blogs.wsj.com/law/2013/11/18/when-paying-a-lawyer-a-compliment-doesnt-pay/.