Legal Case Summary

That's fine. The, uh, just at the outset, which has nothing to do with any legal matter here, what made you decide to press it? I mean, in one sense, you know what the practical concerns are. Judge says, okay, he said some nice things and then he'd prefer you not put it in print. So what sort of goes through your mind when you're saying, hmm, do I take this the next step? Do I just go with it? Sure. Uh, I researched it before we put anything on the website and I wanted to make sure that there wasn't a violation of the RPC and I also looked into the question of whether or not I thought it was constitutionally detected. There is no state that I'm aware of other than a jersey that bars quoting from a judicial opinion regarding attorneys' abilities and attorney advertising. And so I simply looked at the line of Supreme Court cases that we've outlined in our briefs, as well as cases from other circuits and everything told me that it was constitutionally permissible, that was not permissible to impose a flat ban. And given that, I wanted to include the quotations because, frankly, I think they're of service to people who are potential consumers. If I was a potential consumer and looking for a lawyer, I would want to know what judges thought of that lawyer, judges before whom that lawyer had appeared. So it's an endorsement? No. I don't think it's an impermissible judicial endorsement judge degree. I think an endorsement would be if the judge says, I forget about whether it's permissible or impermissible. In the common parlance or usage of endorsement for a moment, it sounds as if the effect that you want on a consumer is this judge has concluded that he's a good lawyer. Is that an endorsement or do you interpret that as merely an even handed judicial assessment? I don't think it's an endorsement. I would admittedly the word endorsement is not defined anywhere in this rule, but I think an endorsement would be if a judge said, I recommend that you hire this person and here's why. I think that if a judge simply gives an evaluation of the performance of an attorney who's appeared before the judge, that's simply a fact that is... How does a layperson lie drawn something like that? If a layperson said, if a layperson saw a quote, say from Justice Alito, formerly of our court that said, Mr. Dwyer, in representing his client is among the best that I've seen. Hard to say that's an endorsement, right? Well, if the judge is saying that in the context of the judges' value, the same context is here. No, then I would not call that endorsement. What I would call endorsement would be if, for example, Judge Fuente said, you know what, Dwyer, I think you're a really great attorney, so it's okay with you. I'm going to take out an advertisement in the New Jersey Law Journal to tell everybody that they should hire you. I think that would be a judicial endorsement. I think that's pretty good. The endorsement being then the equivalent of a testimonial? Yes, although a lot of attorneys use testimonials from clients in peculiar ways, but yes. I mean, a lot of attorneys use testimonials where they simply have a letter from a client. They don't really tell the client anything about what they're using the letter for and they post portions about it

. Is guideline three a restriction on speech or is it a disclosure requirement? Well, obviously our position is a restriction on speech because regardless of how much information you provide, whether you provide a disclaimer, whether you provide greater context, we provide a link to the full opinion. The first sentence of guideline three, flatly prohibits you from quoting or excerpting from a judicial opinion. Suppose you did this right on this point. Here's what you put on your website. I'm supposing. Okay. Judge Fuente's wrote the following assessment of my abilities in an opinion written earlier this year. See for yourself and then you provide the opinion. Does that scenario curtail your first amendment rights because clearly the quotes there, you've set in your own preamble that it's probably going to be positive. What's the problem? Right. You're saying that that was the requirement. If that was the statement requirement. No, no, no. No. I'm asking you, is that a curtailment of your rights? That scenario because I think if what you were going with was there's a point at which you can't. You can't use say the great quote and then the opinion. So I'm suggesting is there an interim position? Sure. In which the full opinions required that serves both purposes and I think that might help us in our analysis. Sure. What I'm trying to make sure I understand Judge Greenway is that as I understand you're saying if the state requires something, would it be a curtailment of my first amendment rights? No, no. I don't know how it could be a curtailment of my first amendment rights if the state didn't require it. No, no. Well, obviously the state is where it's at. Right. Right. And the question is what do you curtail from doing? Right. You say the having to use the full opinion. Yeah

. Inferringes on my first amendment. No, that's not what I'm saying. What I'm saying is that prohibiting me from quoting in fringes on my first amendment rights. If I'm allowed you don't mind posting the whole opinion as long as you also get to excerpt it. Correct. That's exactly correct. Judge Hartman. And let me just let me know the people I can read the whole opinion. Who would let me say two things about that. Judge Hartman. I don't know whether or not people read the whole opinion or not. But one thing is the practical question. If that had been what guideline three came out to say and frankly during the rulemaking process, that's what I encourage the state to try to do. If that had been what guideline three came out to say, no, I would not be standing here. Now, do I agree as a matter of first amendment jurisprudence that it's invariably the case that if you require an attorney to link to the full opinion before the attorney can use the quotation with just an opinion. I'm not 100% sure that that's actually permissible under the first amendment. I can think of various scenarios. For example, if the attorney had a brochure with the attorney have to staple the 50 page of papers. Well, in an abundance of caution to make sure that context was provided. I mean, I think a good policy argument could be made. Could it not that it's important to link to the full text because after the person reads the salutary compliment that you want the person to read. It's nice to have the ability for them to contextualize it if they so choose. So you're going to hate this answer, but I think it depends on context. And what I mean by that is if you look for example at the courts decision in Ibniz where the issue was about how much of a disclaimer would you need to provide about the fact that you want to list that you're a certified financial planner or a CFP. And one of the things that the courts opinion point out is, you know, well, are we going to thereby prevent somebody from listing the fact there are CFP on their business card on their letterhead on a yellow page advertising listing. You know, it depends on the context. In some context, I don't think the link to the full opinion would be unduly burdensome, which is the standard under Zouter, if we're talking about disclosure requirement in the context of website. You're right

. I don't think that that's unduly. I guess I'm starting from the assumption and feel free to push back on it. I think you seem to want to, but I'm starting from the assumption that by requiring more speech, i.e., a hyperlink to the full opinion, it's hard to call that a speech restriction. It's not. I don't think that that is a speech restriction. I just think that even under that standard of Zouter, there can be circumstances where it could be unduly burdensome in the instance of a website. No, but what if the attorney said to take a full page ad in the yellow pages that could be prohibitively expensive or something. Right. What if the attorney wanted, I don't do anything like this, but what if the attorney wanted to do a radio spot? Radio or TV? Yeah. Yeah. They're going to have to spend 20 minutes reading the opinion. It's part of the radio spot. Maybe if they do it in Gregorian chant, they may be able to get an audience. If anyone knew what Gregorian chant was, unfortunately, I did. I grew up with it. I do as well. But that's not the case. We've got agreement on one thing. I don't know if that helps either. No, this isn't as a applied challenge. Right. I didn't see anything in your briefing to really care. Any sort of facial attack. I think what this is, this is very similar to the pre-enforcement challenge that you'd see in Eden versus Infield versus Fane, where they barred the CPA from in-person solicitation. The CPA had never done it in-person solicitation. What this is not like, this is not like the situation, for example, in Bates, where people have had disciplinary charges brought against them

. And now the question is, can those disciplinary charges be upheld under the first amendment? There's never been a disciplinary charge brought. Not a standard fact that puts were on the website with knowledge of the committee for four years. I'm sorry, Judge Greenway, go ahead. You look very good. Yeah, obviously you know me. I'm sorry. I did jump into something. Well, let me ask you this question. You would concede that any one of the three statements could be brought in this, in the context in which they're read to be inherently misleading to a consumer or no? I inherently misled it. No, I wouldn't agree with that. I would agree that there certainly put the potential that it could be misled. But I think three things in response to that specific question. One is that under RPC 7.1 and 7.2, the quotes were on the website with full knowledge of the committee for four years and the committee enforces those rules and those rules prohibit falsumously advertising about the attorneys' abilities of the committee to do anything. The second thing is that, again, they were on there for four years and this is in the record, the site gets thousands of visits a year, especially on the homepage. And there's not a shred of evidence in this case that anybody said they were misled. And it's my personal view that you look at these quotes. They just are a judge evaluating an attorney who appeared before that judge. Now, if I'm dead wrong about that, though, Judge Greenway, I don't think it changes anything about this case because this case is not about whether discipline that was imposed on me can be upheld on the first moment. It's about whether or not this guideline is constitutional or not. As a black to you. As a black to this context. Well, as applied to the context of, you know, in other words, an pre-enforcement challenge to Judge Ambro, I'm entitled to say, look, I'm chilled. I had to take this off of my website. I'm not able to put any version of the quote on the website because the person who's the rule 30b6 witness for the state has said that if I put the quote with a disclaimer, a link to the full opinion, it's still a violation. I don't have to wait until enforcement proceedings brought against me in order to have standing. So I do think I have standing to challenge it and not just look at the question of the individual quotes that were on my website, which aren't on my website anymore

. I don't want to stop any very massive question. I'm just going to point out one thing that struck me, which is, you know, ironically, I think the best evidence about the unconstitutionality of this rule is the trial court's opinion itself. Because when you go look at the trial court opinion, it begins with the three quotes exactly the way they are on my website. And all that Judge Hawksburg says about the three quotes is these are judicial opinions from a fee application about an attorney. And yet there's no way that Judge Hawksburg was using those quotes in a misleading fashion. There's no way that a person of ordinary intelligence reading her opinion would come away from it and think these were impermissible judicial endorsements. So her opinion is not misleading. And I don't think it is in terms of the use of the quotes. Then the fact is, you mean her conclusion that it's misleading. Well, I use the words potentially misleading. Yeah. And isn't that interesting because, you know, what the case law relied upon by the state says is that if something is merely potentially misleading, all you get is a disclosure requirement, not a ban. So even under the case law that they want to rely on such as Zowra or the state was now saying or the courts are saying that it's quote inherently misleading somehow. We can talk about this. I could not hear that. I thought what they're now saying is that what you had was inherently misleading. And I said we can talk with Miss Scott about that. Yeah. Yeah. It's not the position of the trial court took. I think really the state's only defense in this case is their argument that this is not a restriction on speech. If they lose that argument, I don't see how they can win this case. Even if they win that argument. Do they even if they win that argument? I think it's as I said in my very, I think it's a much closer question constitutionally, much closer question. Well, I mean the question under Zowra becomes is and Zowra has said that it must be reasonably related to the state's interest preventing deception of consumers one and not unjustified or unduly burdensome. Correct. And the question I thought there might be you would say that this is unduly burdensome, especially when there's less restrictive alternatives that can be used. For example, a statement that you would quote this and just drop a footnote

. This is not an endorsement. Right. Right. I agree with you. All I'm doing is being candid with the court that that's a closer constitutional question than it would be if it's understood to be a restriction under the central Hudson case. I do apologize for going over. No problem. In fact, I think you're going to be over for a little while longer. Okay. So here's a question for you. Judge Ambrow and a lot of my colleagues when they're presiding often say at the end of an argument. Right. This was a well-breath and well argued case. And if he says that today, I won't put it on my wife's. Well, I'm sure he's excited about that. I wanted to take it once that further though. I just work here. Would that quote fall within the parameters of guideline three? Oh gosh, yes. Sure. Remember, some of these opinions are oral. And so, you know, I don't know how the state could say it would be okay for an attorney to put on his website. Oh, a personal letter from the judge saying, you know, she, Andy, after that trial, I just want to let you know you're the greatest lawyer ever. I could put that on my website, but I can't quote from a judicial opinion where I'm awarded fees. So if that's the state's opinion, they flunk under Rubin versus Cours. And that's why I said that case to the court. So, so let's assume that statement or some permutation of it was given you put it up on your website. Wouldn't a non-witting consumer read that and consider that I'm going to sort of end where we started? Wouldn't they consider that an endorsement? I don't know whether they would or not. I think it's potentially true

. But I also think that the correct answer to that would be a disclosure requirement like a disclaimer as Judge Ambrow was suggesting you know a footnote. Something on the slides. Thank you. Thank you. Thank you. It's back on your bottle. This got. Thank you. Good afternoon. Your honor to Tambrow to a Tardman, I can judge Greenaway. Please the court. Deputy Attorney General Susan Scott on behalf of the court. Let me start at the outset. How are judicial quotes in connection with, in this case, the application inherently misleading? I think they're inherently misleading because it's a partial comment taken out of context which gives people the impression that it's a judicial endorsement. What's the context in which a layperson would read an 18 page or whatever the other ones are? Opinion. I mean, if I were a layperson, if I gave my sister who has more degrees than I do, one of these opinions instead of reading it. Other than falling asleep probably and telling me that it's boring, what conclusion do you say in luckly be she'd come to? I don't get the conclusion that she'd say, wow, this is a judgeboardheimer or judge Guante's or whomever thinks Dwyer is the best thing since she's the inherently misleading part I'm not getting. And I don't see how the entire opinion gets over that. Why providing it to a layperson would get over that problem. It's misleading because statements by an attorney or firm saying that their services are better than someone else's comparative statements are prohibited by RBC 7.1. But it's a factual statement by a judicial officer, right? I mean, it's the edible fact of you. It's the only thing to put into an opinion. In the context of a rubric that a judge needs to apply to a particular application, a fee application for instance? But telling a layperson, see, your solution doesn't tell a layperson, take into account the context in which this came up. Your responses read the whole opinion. I mean, they might say, oh, it's a fee application. Well, you know, I'd have to say 99.999 to infinite them, right? Would read it and say, first of all, I'm not quite sure what a fee application is

. I think I know what it is. But how is providing the opinion going to be the light bulb for the layperson? That's what I'm not. How is it going to be inherently misleading for this layperson? Inherently misleading? Inherently misleading. I think I have two questions. I'm not sure. Judge Greenway's question was, how is providing the opinion going to alleviate the misleading aspect of co-attaction? And I think that it alleviates it because it explains the judge often says, I'm required to consider the attorneys' abilities in this case and the other factors of that test. And so then they go through that and they explain that they're making those findings because they have to make those findings, that they're not their just opinions of the attorney's ability. So the full opinion gives context. Yes. All right. Then he's willing to post the full opinion. He just wants to excerpt it here and there. What's wrong with that? That's more speech, not less speech. Because you're taking the quotation out of context. How is it out of context when the entire body is there? Because you're then relying on the consumer to have the wherewithal to click the link and read the opinion and find out what it has to do with it. But you're the side. You just said you want the consumer to read the whole opinion. I think if the opinions presented and then they have to figure out like they're reading it, okay, this is what it means. But if you're taking it out of context, you're giving it a meaning that it didn't have before us. Can I just stop right there? Let me just read the judge for anti-statement. Mr. Dwyer is I think an exceptional lawyer, one of the most exceptional lawyers I've had the pleasure of hearing before me. He is tenacious, professionalist, presentation to the court. Bit too exuberant times, certainly passionate about his position, but no one can fault his zeal and his loyalty to his client. What's misleading about that? It's the appearance of judicial impropriety. It's misleading because it's giving me..

. Wait, man, time's time out. That has nothing to do with me. If it was the appearance of judicial impropriety, judge Fuentes wouldn't have said it. He said in the context of a rubric that he has to follow in order to make his determinations, but taken out of context, it's misleading. It gives the appearance that this is the judge's opinion of this. Now, say my attorney is... I have a case against someone else, and I'm looking up my adversary's attorney online, and they have this up there. And our judge is Judge Fuentes, and I'm like, well, Judge Fuentes loves their attorney. I'm not going to get a fair day in court. It's misleading. It makes the consumer... If I put out an opinion, I'm just about anything. It can be quoted all over the place, can it? I mean, it can be quoted in large articles, it can be quoted in symposia, it can be quoted in court. Why is it that something I say about an attorney, let's say in a pro bono case, having done a good job, can't be quoted by that attorney in attorney advertising commercial speech? Because it's advertisement. You're using it. But advertising isn't bad. I mean, America's bill on advertising. Absolutely, but you're using it to have the consumer believe that this judge prefers you over other attorneys. What about this statement is an endorsement. We were talking to Mr. Dwyer about this endorsement issue. It seems that in order for us to come to the conclusion that you'd like us to uninherently misleading, we have to think it's an endorsement. Because if we don't think it's an endorsement, then I think we're left with the words and the words could be deemed to be a unbiased assessment of one judge related to the performance of a lawyer. So what is there about this that makes it as you've argued? Because when you take it out of context, it doesn't appear any longer to be an unbiased judge making it determination that he has to make or she has to make in a particular manner

. Why is it an endorsement? That's where we are. It seems to me, obviously my judicial colleagues will disagree or agree, but we have inherently misleading. And the reason that you think it's inherently misleading is because you think it's an endorsement. You believe that a consumer will read this and believe this is an endorsement. And my question to you is, why would a consumer jump to that conclusion? There's nothing about this statement that says, I would hire Dwyer. There's nothing about this that said in the past, I've referred people to Dwyer or the other ways in which in our profession we think about endorsement. So why is it here so clear that you would lead to the conclusion or you would say that there's an inference that it's inherently misleading? If we could take the instances, the examples in this particular case, there was not even a site to a case, there was nothing at all. There was these quotes about Mr. Dwyer's abilities attributed to a judge. Without any context at all, I wouldn't even know why the judge said those things about them, why he was in the upper echelon of employment law. But what about this statement is an endorsement? If a practicing lawyer said, Judge Ambrose, one of the best I've ever appeared before, Judge Hardamon is one of the best I've ever appeared before. Is that an endorsement? It's an assessment. Why would it be flipped? Clearly, if someone was saying that about a judge, you'd say that's an assessment. But now, a judge is saying that about a lawyer, that's an endorsement. Because when it's used in advertising, it's used for that attorney to get business. And using that statement saying Mr. Dwyer is in the upper echelon of employment law. Well, cases are down a little bit, I could use in business. I'm just kidding. I think you're clearly, you're on solid footing that, you know, with all respect to Mr. Dwyer, I don't think it was Ely Moisonary impetus, exclusively that he put this on the website. It's to distinguish him from his competitors, right? Right. Because probably many of his competitors didn't receive the same praise in their feed petitions that he received. So, you're on solid footing there about the advertising aspect. But I still haven't heard you say anything to indicate that there's anything misleading about this inherently. Now, you make the point that he just put these up there without any context. Now, again, I think you're on stronger footing trying to argue against that. But don't you have to argue against his willingness to post the entire opinion and also include the excerpt? I mean, how do you get around? You say it's out of context. To me, it seems perfectly in context. If I turn on the six o'clock news and they show the game winning goal in the hockey game, that's perfectly in context, right? Right. They're not pretending that it was some other baseball game. They're showing me an excerpt. They're showing me a piece of it. And the reasonable observer knows, oh, well, that was the last play of the game. When the reasonable observer readily conclude that Mr. Dwyer's excerpt is an excerpt from the opinion that's right next to it. If the opinions right next to it? Yeah. You know, I'm trying, your position as I understand it, correct me from wrong, is he must post the opinion and only the opinion. And he cannot put more speech on by excerpting out portions of that very opinion. Is that right? More speech in that. Take the excerpt and put it above the opinion. I'm not sure. Above it, below it, next to it. Here's what Judge X said about me in Smith vs. Jones' quotation. And here's a link to the opinion. You say, you argue that's not permissible. I believe that a link to the opinion is not permissible because it's taking that particular statement out of context. Because you're putting it out of the website for the consumer to believe that that judge thinks that this is turning out. You're also putting it on the website with the full opinion in that particular instance. You're also putting it on the website with the full opinion in that particular instance for the person to look at if they wish to do so. I mean, this is a zotterer. Let's just assume for the moment this is a disclosure requirement. And it's not a restriction on speech. And zotterer says that disclosure requirements are constitutional if they are reasonably related to the state's interest in preventing deception and are not unjustified or unduly burdensome. Why not just simply be say, he can put the quote and then put, this is not an endorsement underneath the lorasterous

. To me, it seems perfectly in context. If I turn on the six o'clock news and they show the game winning goal in the hockey game, that's perfectly in context, right? Right. They're not pretending that it was some other baseball game. They're showing me an excerpt. They're showing me a piece of it. And the reasonable observer knows, oh, well, that was the last play of the game. When the reasonable observer readily conclude that Mr. Dwyer's excerpt is an excerpt from the opinion that's right next to it. If the opinions right next to it? Yeah. You know, I'm trying, your position as I understand it, correct me from wrong, is he must post the opinion and only the opinion. And he cannot put more speech on by excerpting out portions of that very opinion. Is that right? More speech in that. Take the excerpt and put it above the opinion. I'm not sure. Above it, below it, next to it. Here's what Judge X said about me in Smith vs. Jones' quotation. And here's a link to the opinion. You say, you argue that's not permissible. I believe that a link to the opinion is not permissible because it's taking that particular statement out of context. Because you're putting it out of the website for the consumer to believe that that judge thinks that this is turning out. You're also putting it on the website with the full opinion in that particular instance. You're also putting it on the website with the full opinion in that particular instance for the person to look at if they wish to do so. I mean, this is a zotterer. Let's just assume for the moment this is a disclosure requirement. And it's not a restriction on speech. And zotterer says that disclosure requirements are constitutional if they are reasonably related to the state's interest in preventing deception and are not unjustified or unduly burdensome. Why not just simply be say, he can put the quote and then put, this is not an endorsement underneath the lorasterous. What's wrong with that? Because I don't think there's a disclaimer. Could cure the argument. Any proper comparative aspect of it. An attorney is not permitted under 7.1, RPC 7.1A3 to have any sort of comparative statement on there comparing an attorney's abilities with others. Let's get back to the basics. Judge Wertherimer had a concern at the outset. They didn't want his words used in connection with this fee application because he perceived that some might think of it as an endorsement. So what if he were to say Mr. Dwyer, this is not intended to be an endorsement by the speaker, the judge? Period. That takes it out. Therefore, it is not inherently misleading. And one could make a darn good argument that is not misleading in any context. Because the idea is if you're going to tell him what he can and cannot do in order to make sure that there is no deception, then you have to do it in a way that isn't burdening him. For example, he can't do a TV spot and you see TV spots every night on television. He can't do a radio spot. You see those all the time or hear those all the time when radio. He can't do a, it would be tough to do a brochure of what's the lengthy opinion. And you're prohibiting him from doing any of those things. And all you, all Judge Wertherimer wants. I just want the world to know, I ain't endorseing this guy. He happened to do a good job. I acknowledge he did a good job. It's not an endorsement. What's wrong with that? I don't think the disclaimer is saying this is not an endorsement. We'll alleviate the impact it has on the consumer. What evidence, you have a burden

. What's wrong with that? Because I don't think there's a disclaimer. Could cure the argument. Any proper comparative aspect of it. An attorney is not permitted under 7.1, RPC 7.1A3 to have any sort of comparative statement on there comparing an attorney's abilities with others. Let's get back to the basics. Judge Wertherimer had a concern at the outset. They didn't want his words used in connection with this fee application because he perceived that some might think of it as an endorsement. So what if he were to say Mr. Dwyer, this is not intended to be an endorsement by the speaker, the judge? Period. That takes it out. Therefore, it is not inherently misleading. And one could make a darn good argument that is not misleading in any context. Because the idea is if you're going to tell him what he can and cannot do in order to make sure that there is no deception, then you have to do it in a way that isn't burdening him. For example, he can't do a TV spot and you see TV spots every night on television. He can't do a radio spot. You see those all the time or hear those all the time when radio. He can't do a, it would be tough to do a brochure of what's the lengthy opinion. And you're prohibiting him from doing any of those things. And all you, all Judge Wertherimer wants. I just want the world to know, I ain't endorseing this guy. He happened to do a good job. I acknowledge he did a good job. It's not an endorsement. What's wrong with that? I don't think the disclaimer is saying this is not an endorsement. We'll alleviate the impact it has on the consumer. What evidence, you have a burden. Right. You can't jump to conclusions and say it's inherent. What evidence did you put in that this is misleading, deceptively misleading, to the public? Under Zotter, you don't need evidence if it has potential to mislead or not. Well, what about under, you got Abanyas and the point is there was a, in Abanyas, you had to put more words than the person one that put as to whether this person was a CFP, a financial planner. And the Court said, no, that's burdensome. So isn't burdensome still part of the test? Bourdome is part of it. And so why can't you do something that's less burdensome than what you're doing? Because the test on Zotter, under Zotter is not the least restrictive means. Well, Zotter was the case, what were the facts on Zotter? The person said that you wanted to pay any cost? It was, yes, a disclosure report. And that was misleading. Right. So here, the person said he's a darn good lawyer, sometimes a little exuberant, sometimes a little over the top, et cetera, but he's a darn good lawyer. What survey do you have that says that that's misleading, or could be misleading? At least there's some significant portion of the public is misleading. Are you mean you do not need to have any evidence when the possibility of deception is self-evident? And the end of the... What is self-evident? I'm asking that that's my point. We have in trouble finding it in any respect, never mind self-evident. That's why we're back inherently misleading. Right. So it's too complimentary at the end of the day. That's the bottom line. From the state's perspective, these judges complimenting these lawyers are giving this lawyer an unfair advantage against the competition. It uses it in his attorney advertising, yes. I mean, if they need... Why? And that has.

. Right. You can't jump to conclusions and say it's inherent. What evidence did you put in that this is misleading, deceptively misleading, to the public? Under Zotter, you don't need evidence if it has potential to mislead or not. Well, what about under, you got Abanyas and the point is there was a, in Abanyas, you had to put more words than the person one that put as to whether this person was a CFP, a financial planner. And the Court said, no, that's burdensome. So isn't burdensome still part of the test? Bourdome is part of it. And so why can't you do something that's less burdensome than what you're doing? Because the test on Zotter, under Zotter is not the least restrictive means. Well, Zotter was the case, what were the facts on Zotter? The person said that you wanted to pay any cost? It was, yes, a disclosure report. And that was misleading. Right. So here, the person said he's a darn good lawyer, sometimes a little exuberant, sometimes a little over the top, et cetera, but he's a darn good lawyer. What survey do you have that says that that's misleading, or could be misleading? At least there's some significant portion of the public is misleading. Are you mean you do not need to have any evidence when the possibility of deception is self-evident? And the end of the... What is self-evident? I'm asking that that's my point. We have in trouble finding it in any respect, never mind self-evident. That's why we're back inherently misleading. Right. So it's too complimentary at the end of the day. That's the bottom line. From the state's perspective, these judges complimenting these lawyers are giving this lawyer an unfair advantage against the competition. It uses it in his attorney advertising, yes. I mean, if they need... Why? And that has... And what I... The question I just asked, the answer I just gave, you just gave... I think has nothing to do with truth or falsity. Right? Right. I mean, whether what has to do with truth or falsity, the judges finding... I'm positing Mr. Dwyer having a huge advantage over practitioners with whom he might be competing for business in New Jersey. In light of these very complimentary things that judges have said about him, that puts him on a privileged position as opposed to other lawyers who have had negative things or nothing said about them. But you agreed with that, right? I don't believe that that's the intent behind the rule. The intent is not because he'll have an unfair advantage in obtaining clients. It's that the clients won't understand the context that these judges made these determinations. What does the judge want the world... What does the judge or the timer want the world to know? He wanted to make sure that the world did know as an endorsement. And I just said to you, what if you put a footnote that says, hey folks, this is not an endorsement? Because I don't think that alleviates the impact it has. It has such a substantial impact on someone reading that. The judge said that he is... You know what? If somebody is a good lawyer, what's wrong with saying they're a good lawyer? Well, those determinations made that case

.. And what I... The question I just asked, the answer I just gave, you just gave... I think has nothing to do with truth or falsity. Right? Right. I mean, whether what has to do with truth or falsity, the judges finding... I'm positing Mr. Dwyer having a huge advantage over practitioners with whom he might be competing for business in New Jersey. In light of these very complimentary things that judges have said about him, that puts him on a privileged position as opposed to other lawyers who have had negative things or nothing said about them. But you agreed with that, right? I don't believe that that's the intent behind the rule. The intent is not because he'll have an unfair advantage in obtaining clients. It's that the clients won't understand the context that these judges made these determinations. What does the judge want the world... What does the judge or the timer want the world to know? He wanted to make sure that the world did know as an endorsement. And I just said to you, what if you put a footnote that says, hey folks, this is not an endorsement? Because I don't think that alleviates the impact it has. It has such a substantial impact on someone reading that. The judge said that he is... You know what? If somebody is a good lawyer, what's wrong with saying they're a good lawyer? Well, those determinations made that case. That very judge could have made a different determination in a different case, Mr. Dwyer handled. So it doesn't necessarily reflect the judges and it shouldn't reflect the judge's opinion as to whether Mr. Dwyer is a good attorney or not. It reflects his findings in that particular case, in that particular context. Everything the judge says is in a public context, right? Yes. So whether a judge comes to one conclusion in one case or another conclusion in another case is important, right? Because in no context, do we put anyone under the microscope and say, you must disclose every person's assessment in every context, everywhere you go, right? And that's not what advertiser say. A hundred things have happened to our consumers. Here's two really good things. We'll put that forward, right? But I want to come back to this question that Judge Ambre will put to you. The reasonable relationship is, I think, a problem here for you. Why? And it comes back to the whole context issue. Why is putting the entire opinion, requiring the entire opinion and nothing else reasonably related to the state's interest? Because the New Jersey Supreme Court has a stringent view of attorney advertising. And it has vested in it from the New Jersey State Constitution on Federal discretion to regulate the profession of law. And it was the Supreme Court that decided that the use of the judicial courts and experts must be presented in their full context to prevent the decision. Why did you need this guideline? You've got a state ethics role that says you can't have misleading statements paid by attorneys. Why do you need this guideline three in light of that role that already existed? Because there wasn't an advertising guideline in Nathiris. It was, it wasn't addressed through the attorney advertising. But you just told me. It was addressed through ethics. But you just think logically. You just said what was said here is inherently misleading. Yes. There is already an ethics provision in the court system in New Jersey that you cannot have misleading statements. Yes. Therefore, why do you need anything else beyond that if you deemed this to be a misleading statement? Because the committee on attorney advertising after becoming aware of what Mr. Dwyer was doing thought that it was necessary that we all they also needed an attorney advertising guideline. They recommended the adoption based upon the information that they learned the postings on his website

. That very judge could have made a different determination in a different case, Mr. Dwyer handled. So it doesn't necessarily reflect the judges and it shouldn't reflect the judge's opinion as to whether Mr. Dwyer is a good attorney or not. It reflects his findings in that particular case, in that particular context. Everything the judge says is in a public context, right? Yes. So whether a judge comes to one conclusion in one case or another conclusion in another case is important, right? Because in no context, do we put anyone under the microscope and say, you must disclose every person's assessment in every context, everywhere you go, right? And that's not what advertiser say. A hundred things have happened to our consumers. Here's two really good things. We'll put that forward, right? But I want to come back to this question that Judge Ambre will put to you. The reasonable relationship is, I think, a problem here for you. Why? And it comes back to the whole context issue. Why is putting the entire opinion, requiring the entire opinion and nothing else reasonably related to the state's interest? Because the New Jersey Supreme Court has a stringent view of attorney advertising. And it has vested in it from the New Jersey State Constitution on Federal discretion to regulate the profession of law. And it was the Supreme Court that decided that the use of the judicial courts and experts must be presented in their full context to prevent the decision. Why did you need this guideline? You've got a state ethics role that says you can't have misleading statements paid by attorneys. Why do you need this guideline three in light of that role that already existed? Because there wasn't an advertising guideline in Nathiris. It was, it wasn't addressed through the attorney advertising. But you just told me. It was addressed through ethics. But you just think logically. You just said what was said here is inherently misleading. Yes. There is already an ethics provision in the court system in New Jersey that you cannot have misleading statements. Yes. Therefore, why do you need anything else beyond that if you deemed this to be a misleading statement? Because the committee on attorney advertising after becoming aware of what Mr. Dwyer was doing thought that it was necessary that we all they also needed an attorney advertising guideline. They recommended the adoption based upon the information that they learned the postings on his website. Let me ask you the same question that I asked Mr. Dwyer. Suppose he wrote, this is a preamble. Judge Fuente wrote the following assessment of my abilities and opinion written earlier this year. See for yourself. Is that problematic? And then linked to the opinion. Yes. These case by case determinations are for the consideration of the committee of attorney advertising. But as I understand it, that should be permissible. Because he's not taking any quote. He's not taking any excerpt out of context. He's not putting it out there. He's giving his own little description of this judge assessed my abilities. In this particular case, go take a look at it. All right. Suppose he used an adjective before assessment. And he said, Judge Fuente wrote the following phenomenal assessment of my abilities. Or wrote the following assessment of my abilities which in my humble opinion is phenomenal. I think both of those are fine because it's clear that it's his opinion, that it's phenomenal. It's his opinion that it, it's where, especially where he says in my opinion, it's phenomenal. And he again, he's not taking the quotation or the excerpt out of the opinion. He's giving his opinion on the excerpt. No, keep going. He's giving a little summary paragraph explaining, hey, this judge gave this opinion of my, or assessment of my abilities. I think it's phenomenal. Go see the opinion. And then you go look at the opinion and then you could see what the judge said. And if he said in the attached opinion at page 17 paragraph three, judge word time or complimented me

. Let me ask you the same question that I asked Mr. Dwyer. Suppose he wrote, this is a preamble. Judge Fuente wrote the following assessment of my abilities and opinion written earlier this year. See for yourself. Is that problematic? And then linked to the opinion. Yes. These case by case determinations are for the consideration of the committee of attorney advertising. But as I understand it, that should be permissible. Because he's not taking any quote. He's not taking any excerpt out of context. He's not putting it out there. He's giving his own little description of this judge assessed my abilities. In this particular case, go take a look at it. All right. Suppose he used an adjective before assessment. And he said, Judge Fuente wrote the following phenomenal assessment of my abilities. Or wrote the following assessment of my abilities which in my humble opinion is phenomenal. I think both of those are fine because it's clear that it's his opinion, that it's phenomenal. It's his opinion that it, it's where, especially where he says in my opinion, it's phenomenal. And he again, he's not taking the quotation or the excerpt out of the opinion. He's giving his opinion on the excerpt. No, keep going. He's giving a little summary paragraph explaining, hey, this judge gave this opinion of my, or assessment of my abilities. I think it's phenomenal. Go see the opinion. And then you go look at the opinion and then you could see what the judge said. And if he said in the attached opinion at page 17 paragraph three, judge word time or complimented me. Take a look. That's okay too. You gotta say yes. Based on where we just said. You're hesitation. Your hesitation tells me that my instinct about this was right, which is New Jersey wants to do whatever it can to make sure the consumer doesn't get to see the complimentary remarks. You want it, you want it buried in this 20 page transcript. One of these wasn't even a written opinion. It was an oral transcript. So you're hoping by, you know, you're hoping by, by forcing Mr. Dwyer to put war in peace. He's out there. Or, you know, better yet, you know, the brother's caramods off that they, they won't get to hear, you know, the speech at the end that everyone wants to read because they won't get there. Judge Artiman, I apologize and please don't, don't misunderstand my hesitation. My hesitation is, is because this is going to be used later to be to say, D.A.G. Susan Scott said this was okay. That's my hesitation. So with my disclaimer of these case by case, the term relations are left for the committee on attorney advertising and on based upon my understanding of the rule, the language and the intent. I don't believe that the hypothetical you proposed would run afoul of guideline three. If he said, judge, flinters said favorable things about my abilities. At page 17 of this opinion, take a look. I think that's fine. It only runs afoul when you take that judicial opinion that quote or that excerpt out of context. Because then you're giving them the thing and why would anybody want to go look? It's right there. That's what it said. That's what the judge said

. Take a look. That's okay too. You gotta say yes. Based on where we just said. You're hesitation. Your hesitation tells me that my instinct about this was right, which is New Jersey wants to do whatever it can to make sure the consumer doesn't get to see the complimentary remarks. You want it, you want it buried in this 20 page transcript. One of these wasn't even a written opinion. It was an oral transcript. So you're hoping by, you know, you're hoping by, by forcing Mr. Dwyer to put war in peace. He's out there. Or, you know, better yet, you know, the brother's caramods off that they, they won't get to hear, you know, the speech at the end that everyone wants to read because they won't get there. Judge Artiman, I apologize and please don't, don't misunderstand my hesitation. My hesitation is, is because this is going to be used later to be to say, D.A.G. Susan Scott said this was okay. That's my hesitation. So with my disclaimer of these case by case, the term relations are left for the committee on attorney advertising and on based upon my understanding of the rule, the language and the intent. I don't believe that the hypothetical you proposed would run afoul of guideline three. If he said, judge, flinters said favorable things about my abilities. At page 17 of this opinion, take a look. I think that's fine. It only runs afoul when you take that judicial opinion that quote or that excerpt out of context. Because then you're giving them the thing and why would anybody want to go look? It's right there. That's what it said. That's what the judge said. Judd said he was great. Why do I need to look at context? Well, but if you say he said these great things about my opinion, about my abilities in this opinion, go take a look. Then the consumer goes and sees why the judge said those great things. When New Jersey was considering adopting guideline three, I assume it looked at what other states are doing. Is there any other state that's adopted something akin or identical to guideline three? I do not know that off the top of my head here today. I can submit it in something and writing. Okay. Any other questions? Okay. Thank you. Thank you. Thank you. First of all, I think we've got some clarification of the state's position today, which we didn't really have before, based on their brief, which is that they're saying no matter what you can't quote. And that makes it a restriction. The second thing is I heard Miss Scott say several times that you're not allowed to make comparative statements about your abilities under New Jersey. The committee on attorney advertising issue, opinion number 15, which we cited to you in our initial brief, which allows client testimonials, which would be making comparative statements about attorneys. The committee later adopted an opinion 33 that took that back and said, you know what we don't want you to make a pair of statements. You could just say things like the attorneys nice, they answer the phone quickly, whatever. But then opinion 33 has been thrown out. And as the their rule, 30 be six witness test divided, the governing opinion for attorneys right now in New Jersey, as you can put client testimonials, even if they make comparative statements about the attorneys' abilities. And they'll post testimonials are all over the internet in New Jersey. So her statement that you cannot make comparative statements about attorneys' abilities in New Jersey that run afoul the RPC is just wrong. When they were going in the process of adopting or putting the language together for guideline three, do you have any idea of what other states have similar guidelines? Yeah, like I said to you before Judge Ambrow, I researched this even before we put this on the internet. And I've never been able to find a state that has a similar provision. Most states rely on the analog to RPC whether it's the same numbers, the analog to RPC 7.1 and 7.2, which says that an attorney advertising you cannot make a false or misleading statement about the attorneys' services. And that's another thing that Ms. Scott said that was absolutely incorrect

. Judd said he was great. Why do I need to look at context? Well, but if you say he said these great things about my opinion, about my abilities in this opinion, go take a look. Then the consumer goes and sees why the judge said those great things. When New Jersey was considering adopting guideline three, I assume it looked at what other states are doing. Is there any other state that's adopted something akin or identical to guideline three? I do not know that off the top of my head here today. I can submit it in something and writing. Okay. Any other questions? Okay. Thank you. Thank you. Thank you. First of all, I think we've got some clarification of the state's position today, which we didn't really have before, based on their brief, which is that they're saying no matter what you can't quote. And that makes it a restriction. The second thing is I heard Miss Scott say several times that you're not allowed to make comparative statements about your abilities under New Jersey. The committee on attorney advertising issue, opinion number 15, which we cited to you in our initial brief, which allows client testimonials, which would be making comparative statements about attorneys. The committee later adopted an opinion 33 that took that back and said, you know what we don't want you to make a pair of statements. You could just say things like the attorneys nice, they answer the phone quickly, whatever. But then opinion 33 has been thrown out. And as the their rule, 30 be six witness test divided, the governing opinion for attorneys right now in New Jersey, as you can put client testimonials, even if they make comparative statements about the attorneys' abilities. And they'll post testimonials are all over the internet in New Jersey. So her statement that you cannot make comparative statements about attorneys' abilities in New Jersey that run afoul the RPC is just wrong. When they were going in the process of adopting or putting the language together for guideline three, do you have any idea of what other states have similar guidelines? Yeah, like I said to you before Judge Ambrow, I researched this even before we put this on the internet. And I've never been able to find a state that has a similar provision. Most states rely on the analog to RPC whether it's the same numbers, the analog to RPC 7.1 and 7.2, which says that an attorney advertising you cannot make a false or misleading statement about the attorneys' services. And that's another thing that Ms. Scott said that was absolutely incorrect. She said when you asked her why do you need guideline three, she said well our committee can't enforce those other rules. That's absolutely wrong. The rules specifically empower the committee attorney advertising to enforce the rules that govern false and misleading statements and advertising. So if they thought those quotes were false and misleading, they could have brought ethics charges against me. They had full power to prosecute that. A couple just really quick points. Good. Or hoping that happened. No. Obviously that's why I took them off my site because if I didn't take them off my site they would have filed a motion of smiths under a young group extension, right? So the other thing is this is where the Rubin versus Cours case, I think it's so significant. It's just not rational for them to be saying that the average consumer seeing the quotes is going to be so misled and so deceived. But when they read it in the opinion, if they're willing to slog through 40 pages of opinion, somehow that's going to be okay. Even though the rest of the opinion has absolutely nothing to do with the attorney's abilities. You know, if you've ever seen the transcript of a post trial motion, it's all about the defendant's JNOV motion and so forth and so on. The amount of discussion about the attorney's abilities is paragraph. And then this other thing, you know, well, they don't know how the judge got to the opinion. They don't know how the judge reached the opinion. You know, that's wrong under. Ibn is an underpeal. Those courts say specifically the fact that the consumer doesn't have all the information does not make it deceptive. The court specifically rejected the idea that the MBTA certified civil trial attorney designation was misleading just because your average consumer might not know what the MBTA is. And the court specifically rejected the idea and Ibn is that the certified financial planner designation was misleading because your average consumer might not know what that is. So the fact that there's not complete information about something does not make it misleading if it were that every advertisement on TV would have to go on for five hours. Thank you very much. I would like to ask council if you would have a transcript prepared and you split the costs. I'm rich judge. I'll just pay for it. It was with some trepidation that I say that well presented argument

. And we'll take the matter under advisement. Okay. All right