False Advertising: How the Third Circuit Misused The Free Speech Standard to the Benefit of New Jersey Lawyers and the Detriment of the Public

Though free speech is a pillar of American society, it is appropriate at times, to qualify or even restrict speech.This Note argues in favor of one such restriction on attorney advertising and critiques the Third Circuit's reasons for striking down the restriction.In Dwyer v. Cappell, 1 the Third Circuit reviewed the constitutionality of "Guideline 3," a Rule of Professional Conduct. 2 Guideline 3, adopted by the New Jersey Supreme Court in 2012, stated that attorneys could not include subsections of a court opinion "about the attorney's abilities or legal services" in any advertising.3 Ultimately, the Court held that Guideline 3 violated the First Amendment's guarantee of free speech.4 In particular, it held that Guideline 3 failed to meet the low threshold established in Zauderer v. Officer of Disciplinary Counsel of Supreme Court of Ohio, 5 which pertains to "disclosure requirements" on commercial speech.6 Because of this, the Court failed to explore the heightened standard articulated in Central Hudson Gas & Elec.Corp. v. Pub.Service Comm'n of N.Y., 7 which pertains to "restrictions" or bans on commercial speech.8 The Court held that Guideline 3 failed to meet the threshold for disclosure requirements because it practically banned commercial speech by demanding "unduly burdensome" requirements.9 To support that reasoning, the Third Circuit looked to cases where disclosure 1 Dwyer v. Cappell, 762 F.3d 275 (3d Cir.2014).2 Id. at 284-85. 3 Rules of Professional Conduct, Guideline 3 (effective June 1, 2012), http://www.judiciary.state.nj.us/rules/apprpc.htm.4 Dwyer, 762 F.3d at 276. 5 Id. at 284. 6 Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 651 (1985).7 Cent.Hudson Gas & Elec.Corp. v. Pub.Service Comm'n of N.Y., 447 U.S. 557 (1980).8 Cent.Hudson, 447 U.S. at 564-5; Dwyer, 762 F.3d at 284. 9 Dwyer, 762 F.3d at 284. requirements were unduly burdensome and posited that Guideline 3 was equally burdensome.10 This Note posits that the Third Circuit incorrectly held that Guideline 3 was unconstitutional.Part II of this Note will provide background information regarding the origin and evolution of the New Jersey Rules of Professional Conduct.11 It will also give the procedural history and facts of the case at issue.12 Part III begins by discussing relevant legal background surrounding the Third Circuit's holding and this Note's response, discussing the standards the Supreme Court established for analyzing issues involving free speech and commercial speech.13 Then, this Note explains how and why the Third Circuit incorrectly applied the legal standards.14 Part IV explores the impact of the Third Circuit's ruling on attorney advertising, free speech, and public trust in the legal system moving forward.15 Lastly, Part V concludes by reasserting this Note's legal arguments and the effect of the Third Circuit's ruling.16 This Note will not, however, discuss Guideline 3's effect on other forms of advertising, such as billboard or television ads, nor whether Guideline would be able to meet the Central Hudson standard for commercial speech restrictions.It only suggests that if Dwyer were appealed to the Supreme Court, the Third Circuit's decision should be reversed; moreover, Guideline 3 should be viewed as an appropriate disclosure requirement in light of Zauderer, and perhaps a necessary form of speech restriction in the legal community. Part II: BackgroundA. New Jersey Rules of Professional Conduct 10 Id. at 283-84.11 See infra Part II A. 12 See infra Part II B. 13 See infra Part III A, B, and C. 14 See infra Part III D, E, and F. 15 See infra Part IV. 16 See infra Part V.