Andrew Dwyer v. Cappell, 3rd Circuit, August 11, 2014Andrew Dwyer, a plaintiffs' employment discrimination lawyer in Newark, New Jersey has a strong litigation record. New Jersey's Law Against Discrimination permits awards of counsel fees to be paid to victorious claimants. To gain that remedy a judge must make a finding of fact regarding the value of the prevailing counsel's work. Judge William L'E Wertheimer made such a finding - one he complained about when he learned that Dwyer had featured it on his firm's website.
“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
---Hon. William L. Wertheimer, J.S.C.
The New Jersey Supreme Court's Committee on Attorney Advertising - a disciplinary body - agreed and ordered he cease. The Court approved a prohibitory Guideline saying that such use was misleading - because a finding of fact is not an endorsement and represents only an assessment of an award on a particular occasion.
Dwyer challenged the Guideline in federal court and lost at the District level. The Third Circuit reversed. Although a disclosure might meet constitutional muster
"Because Guideline 3 effectively precludes advertising with accurate excerpts from judicial opinions on Dwyer’s website, it is unduly burdensome.
Guideline 3 as applied to Dwyer’s accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring Dwyer to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception. To the extent the excerpts of these opinions could possibly mislead the public, that potential deception is not clarified by Guideline 3. In any event, what is required by the Guideline overly burdens Dwyer’s right to advertise. "