I saw an article in this month’s ABA Journal about Andrew Dwyer, a New Jersey lawyer who decided to post excerpts of an unpublished judicial decision on his website. In the excerpts, a judge is complimenting him on his work. The judge then requested he remove the quotes but Dwyer refused. A New Jersey State Bar Association committee subsequently drafted a rule, Guideline 3, that prohibits attorneys from posting a quotation or an excerpt as advertising but allows the posting of an entire judicial opinion. The rule was adopted by the Supreme Court of New Jersey but Dwyer filed a First Amendment lawsuit the day before it was to go into effect. Dwyer lost at federal district court but won on appeal to the 3rd U.S. Circuit Court of Appeals.
Two things came to mind when I was reading this article: Do our Maryland rules provide a clearer direction on this advertising issue? And is this a bigger issue than “normal” advertising because of the proliferation and evolution of technology?
I was intrigued to look at our Rules of Professional Conduct to see what if it says about this issue of advertising. Under Rule 7.1, “a lawyer shall not makes a false or misleading communication… about the lawyer’s services.”
In Dwyer’s case, the district court said it was concerned the excerpts could potentially mislead consumers and that the state had interest in protecting consumers from deception. But the 3rd circuit, relying on a U.S. Supreme Court opinion, held Guideline 3 was “unduly burdensome.”
This issue is not unique to New Jersey, and I believe it likely will make its way to other jurisdictions, including Maryland. I am really interested in seeing what the Court of Appeals will do if and when this issue comes up. Does Rule 7.1 already address this issue? Is there a need to protect the public from the excerpt from a judicial opinion that could be viewed as potentially misleading? Do judicial opinions not enjoy any protection because they are public, thus they can be used as advertising material? If a judge compliments an attorney on the record, is it an endorsement of the attorney’s services as described in Rule 7.1? Could a posted excerpt create an “unjustified expectation” in violation of Rule 7.1(c)?
Dwyer’s case also raises technology issues. Is this a consequence of the proliferation of technology and our need to publish everything about ourselves online? How will Internet advertising be regulated in a sphere that continually evolves and has so many outlets such as Facebook, Twitter, LinkedIn, to name a few?
If you have any thoughts, please share them below.