The New Jersey Supreme Court Committee on Attorney Advertising recently released a “Notice to the Bar” regarding attorney “accolade” advertising: the touting by attorneys of various awards they might have received (including, presumably, their Avvo Ratings).
The Notice goes on at some length regarding the appropriateness of publicizing such awards, and the disclaimer requirements the Committee imposes on any such advertising. What do these disclaimers look like? The Notice contains a helpful example:
For example, a reference to the Super Lawyers accolade should provide:
“Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection process detail.html. No
aspect of this advertisement has been approved by the Supreme Court of New Jersey.”
So if you’ve been named a “Super Lawyer,” and you want to let people know, the New Jersey bar regulators want you to include a lengthy disclaimer, including a little pursed-lips head-shake noting that Supreme Court does not approve, not one bit.
This is, to put it mildly, ludicrous. It’s also unconstitutional: there are limits to the state’s ability to compel speech in the form of mandatory disclaimers. And although the way these limits apply is a little more complicated than a straightforward commercial speech analysis, as a general rule compelled disclosures must be necessary to:
- Cure otherwise-misleading advertising, or
- Protect consumers from unwitting harm, or
- Advance some other significant government interest.
Such mandatory disclosure requirements must be, like all commercial speech regulations, narrowly tailored.
Does the New Jersey Supreme Court’s requirement meet any of these requirements? Of course not. There’s nothing misleading about an attorney stating truthfully that a third party has bestowed an award. To the extent anyone wishes to dig into the methodology behind that award, such data is typically available online in a few mouse clicks. And there’s no significant government interest here; rather, it’s just the Committee’s distaste for accolades, and its attempt to make it too cumbersome to advertise such things.
And here’s the kicker: the Committee really should know better, because a federal court smacked it back on a very similar issue less than two years ago. In finding that the Committee’s disclosure requirements around advertising laudatory quotes from judicial opinions was unconstitutional, the Third Circuit noted:
“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.” 1
And the rule here re disclaimers on accolade advertising? I’d say it ticks all three boxes: not reasonably related to preventing consumer deception, not directly advancing an important government interest, and overly burdening the right of lawyers to advertise.
It would be nice if the New Jersey Committee on Attorney Advertising learned from its past overreaching. And it would great if it could show some respect for the ability of the public to weigh and discern the meaning of legal accolades. But that kind of balanced thinking doesn’t seem to be in the cards.
h/t ABA Journal