Did you ever hear about the case of the lawyer and judge who went to court over the issue of whether the lawyer could run an ad claiming that the judge thought he was a great lawyer?
It all began in 2008 when Andrew Dwyer, a Newark, New Jersey workplace discrimination lawyer, quoted three judges on his website who had praised him in their opinions. The quotes included laudatory excerpts like: Dwyer was an “exceptional lawyer” in the “upper echelon of employment lawyers” and a “fierce . . . advocate for his clients.”
One of the judges wasn’t thrilled about being portrayed as endorsing Dwyer, and complained to the state judiciary committee about it. Four years later, the New Jersey Supreme Court issued new attorney advertising guidelines precluding such quotes, whereupon Dwyer took the case to federal court and lost.
But the battle wasn’t over. Earlier this month, the Third U.S. Circuit Court of Appeals reversed the decision and ruled in Dwyer’s favor.
So now the magistrate can be quoted, whether he likes it or not.
Dwyer may have emerged victorious, but I foresee some potential relationship management pitfalls. Like the next time he has a case in front of said judge:
“I object, Your Honor.”
“Mr. Dwyer, I seem to recall that you didn’t care when I objected!”
Also, Dwyer’s strategy might backfire. If his advertising goal is to obtain new business, clients seeking to battle discrimination in the workplace might not be impressed by a lawyer who crows about kowtowing to a judge. Insteady, they may want a rebel, a fighter, someone who stands up to authority. Dwyer might have been better off quoting judges who can’t stand him:
“Every time Dwyer steps into my courtroom, I groan ‘Oh NO!’” – Judge Phelps
“I’ve held him in contempt more than any other attorney, ever.” –Judge Green
“Dwyer’s ‘objections’ are objectionable!”- Judge Landry
Will Andrew Dwyer Fight For You? YOU Be The Judge.
This decision was probably inevitable. After all, the “slippery slope” of what’s considered acceptable vis a vis lawyers’ self-promotion has been shifting for close to 40 years.
You young legal bucks out there may not believe it, but there was a time when attorneys weren’t allowed to advertise their services because it was considered “unethical,” crass, and beneath the dignity of the profession.
Then, in 1977, the U.S. Supreme Court ruled in Bates V. State Bar of Arizona 433 U.S. 350 (1977) that advertising was commercial speech protected under the First Amendment. And thus, the late-night personal injury lawyer commercial was born, dramatically lowering the bar overnight on what heretofore could be considered “beneath the dignity of the profession.”
Today, even a cursory Internet search reveals ads with “rapping” lawyers; lawyers standing in front of exploding cars and burning buildings and assorted carnage, with wailing ambulances in the background; and ones featuring DUI offenders who escaped culpability due to the cleverness of their attorney. My “favorite” might be the Florida divorce attorney (who I am not going to do the favor of identifying by name) standing in front of his floor-to-ceiling bookcase crammed with volumes of law cases proclaiming, “If you and your spouse hate each other like poison and want to get out of the hell-hole you call a marriage… pay up…and you’re on your way to getting rid of the vermin you call a spouse.”
Subtle, but memorable!
By comparison, Breaking Bad’s “criminal lawyer” Saul Goodman’s “Better Call Saul” pseudo-commercials seem almost statesmanlike. (Anyone else excited for that spin-off?)
This unfortunate “sideshow” aspect of the profession aside, these days it’s almost “unethical” for a lawyer not to advocate for him or herself in some fashion. But what’s considered appropriate is an ongoing process, as the Dwyer ruling shows, and is a topic we’ll come back to in an upcoming blog.