well that's why i'm just at the outset which has nothing to do with any legal matter here what made you decide the press it i mean in one sense you know what the practical concerns are judges ok 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 do i take this the next step do i just go with it sure i researched it before we put anything on the website and i wanted to make sure that there wasn't a violation of the i p c and i also looked into the question of whether or not i thought it was constitutionally protected there is no state that i'm aware of other than a jersey that bars quoting from a judicial opinion regarding attorney civilities an attorney advertising so i've simply looked at the line of supreme court cases that we've got line in our briefs as well as cases from other circuits and everything told me that it was constitutionally permissible conservation missile to impose a flat ban and given that i wanted to include the quotations because quite 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 in the in the let's say the common parlance or usage of endorsement for a moment is it's sounds as if the effect that you want on a consumer is this judge has concluded that he's a good boy 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 merely the word endorser is not defined anywhere in this rule but i think it or smith 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 has appeared before the judge that's simply a fact hundreds and hundreds a lay person line drawn in something like that if a if a layperson said if a lay person saw a quote say from a justice alito formerly of our court that said in representing its client is among the best that i've seen hard to say that's not indoors well if the judge is saying that in the context of the judge's very same context as here yet no then i'd would not call that a nurse and i think i would i would call indoors would be if for example judge frank days said you know what to wear i think you're a really great attorney so it's ok 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 judicial doris and i think that's pretty horrifying that then the equivalent of a testimonial yes although a lot of attorneys use testimonials from clients in particular 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 a letter for and they post emotions is guideline three a restriction on speech or is that a disclosure requirement well obviously our position is a restriction on speech because regardless of how much information you provide where you write a disclaimer whether you provide greater context we provide a link to the full opinion the first sentence of guideline three flatley for hits you from quoting or see for yourself and then you provide the opinion does that scenario curtail your first amendment rights because clearly the quotes there you've said in your own preamble that it's probably going to be positive right what what's the problem right you're saying that that's an error that was the requirement that was the state oh i don't know why i'm asking you is is that a curtailment of your rights that scenario because i think you're if what you're going with was there's a point at which you know you can't use say of the great quote and then the opinion so i'm suggesting is there an interim position sure in which the full opinion is required that serves both purposes and i think that might help us in our now sure what i'm trying to make sure i understand judge greenaway is that as i understand you're saying if the state required something would it be a critical moment of my knowing right because i don't know how it could be done to get  my first and rights of the state didn't require no well obviously the state is where it's at right right and the and the question is what are you can tell from doing what you say the the having to use the full opinion  infringes on my first amendment no that's not what i'm saying what i'm saying is that prohibiting me from quoting it infringes on my first vote rights if i'm allowed you don't mind posting the whole opinion as long as you also get to correct that's exactly correct judge hartmann and let me just as you know the people are going to read the whole opinion one way let me say two things about that judge howard and i don't know whether or not people read the whole thing or not but one thing is the practical question if that had been what guideline three came out to say and frankly during the rule making process that's what i encourage the state to try to do if that had been what guideline three cannot 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 which is opinion i'm not one hundred percent sure that that's actually permissible under the first amendment i can think of various scenarios that for example the attorney had a brochure with the attorney have to staple the fifty really 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  salutary complement that you want the person to read right it's nice to have the ability for them to contest realize if they so choose right 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 court's decision and in this where the issue was about how much of a disclaimer would need to provide about the fact that you want to list that you're a certified financial planner c f e and one of the things that the court's opinion point out is you know  thereby prevent somebody from lists in fact there are c f p on their business card on their letter had on a yellow page advertising listing you know it depends on the context and some context i don't think the link to the full opinion would be unduly burdensome which is the standard under souter if we're talking about disclosure requirement in the kind of of website you're you're right i don't think that that's i'm doing i guess some i'm starting from the assumption in 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 sure it's hard to call that a speech restriction it's not a i don't think that that is a speech restriction i just think that even under that standards  souter there can be circumstances where it could be unduly burdensome in the instance of a website no but what if the attorney said i think i don't full page ad in the yellow pages that could be prohibitively expensive or sariah what if the attorney wanted i don't an as applied challenge right i didn't see anything in your briefing to really carry any sort of facial attack right i think what this is this is very similar to the pre enforcement challenge that you see in even vs in field vs fane where they barred the c p a from in person solicitation the c p a never done that in person solicitation what this is not like this is not like the situation for example in dates where people have had disciplinary charges brought against them and now the question is can those disciplinary charges be upheld the committee for four years in the committee and forces those rules and those rules prohibit false or misleading advertising about the attorney's abilities and committed to do anything the second thing is is that again they were in there for four years the and this is in the a year especially on the home page 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 attorney who appeared before the judge now if i'm dead wrong about that though judge greenaway i don't think it changes anything about this case because this case is not about whether discipline it was opposed only can be upheld in the first amendment it's about whether or not this guideline is constitutional  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 thirty six 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 till enforcement proceed is brought against me in order to have standing so i do think i have standing to challenge it and and not just look at the question of the individual quotes that are on my website which aren't on my website anymore i don't want to stop either massive question i 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 truck court's opinion itself because if you look at the trial court opinion it begins with the three quotes exactly the way they are on my website and all that the judge hospital says about the three quotes is these are judicial opinions from a fee application of an attorney and yet there's no way the judge hawksford was using those quotes in a misleading fashion there's no way that a person of ordinary intelligence reading her misleading in judea 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 of requirement not of being so even under the case whether they want to uote about that yeah yeah it's it's not the position of the trial court 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  that it must be reasonably related to the state's interest preventing deception of consumers want and not on justified or and really burdensome correct and the question i thought there might be we would say parameters of guideline three oh gosh yes sure you know remember some of these opinions are oral and so you know i don't know how the state could say it would be ok for an attorney to put on its website oh a personal letter from the judge saying you know gee andy after that trial i just want to let you know you're the greatest lawyer ever i can 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 ruben versus course and that's why i said that cases were so so let's assume that statement or some permutation of it was given you put up on your website when the non winning consumers read that and consider that i  sort of and where we started when 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 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 digicel endorsement what's the context in which an laid person would read an eighteen page or whatever the other ones are opinion i mean if i were a labor of i gave my my sister who has you know more degrees than i do one of these opinions and said read it other than opinion gets why providing it 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 r b c seven point application a fee application for that of telling the lay person see but your solution doesn't tell a person take into account the context in which this came up your your responses read the whole opinion i mean they think might say oh it's a free application well you know i'd have to say ninety nine point nine nine nine i put in for night right would read and say first of all i'm not quite sure what a fee application is i think i know what it  i think i have two questions i'm not sure what it is that judge greenways question was how is providing the opinion going to alleviate the misleading blanket and i think that if it is a levy it's a because it explains the judge often  says i'm required to consider the attorney's abilities in this case and the other factors of that test and so then they go through that and they explain that that they're making those findings because they have to make those findings that they're not they're just opinions of the attorneys ability  so the full opinion gives context yes all right then the heat but 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 if you're taking the the out of context how is it out of context when the entire the entire body is there because you're them relying on the consumer to have the wherewithal to cut the link and read the opinion and find out what it has to do what w said he said in the context of a rumor that he has to follow in order to make a determination but taken out of context it's misleading it to give the appearance that this is the judge's opinion of the us now say my  is that something i say about it surely say the pro bono case having done a good job can't be quoted by that a truly in the truly advertising commercial speech because it's advertisement you're it is it isn't good is it bad i mean at americans don't advertise it absolutely but you're using it to have the consumer believe that this judge prefers you over other  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 it to the performance of a lawyer so what is there about this that makes it as you hearken because when you take it out of context it doesn't appear any longer to be an unbiased judge making that's meant to get good that's where we are right it seems to me obviously my judicial colleagues will disagree or agree but right we have here only misleading and the reason that you think it's inherently inherently misleading is because you think it's indorsed right 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 by there's nothing about this statement that says i would hire to wire there's nothing about this that sa d in the past i've referred people to do wire or the other ways in which you know you know 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 this lead if we could take the instances the examples in this particular case there was not even a cite to a case there was nothing at all there was these quote you're on solid footing that you know with all respect to mr dwyer i don't think it was really more as an airy impetus exclusively that he put this in 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 free 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 that 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 a baseball game they're showing me next or their show 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 m only the opinion and he cannot put more speech on by excerpting out portions of that very opinion is that right and here is a link to the opinion and you say you argue that's that's that's not permissible i believe the link to the opinion is not permissible because it's taking that that particular statement out of context and  because you're putting it on that site for the consumer to believe that judge thinks that this here are putting it on the web site with a legal opinion in that particular instance you're sorry you're also putting on the website with the full opinion in a particular instance with a pretty person to look at if they if comparative statement on their comparing attorneys abilities with another's let's let's get back to the basics judge worth time or had it concern at the outset they didn't want his words used in this can in connection with this because he perceived as 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 to judge period that takes it out therefore it is not inherently misleading and one can make a darn good argument that it's 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 t v spot and you see t v spots every night on television you can do a radio spot you see those all the time or hear those all the time on the radio he can't do a it would be tough to do a brochure it was a way for the opinion and you're pretty pretty him from doing any of those things and all you all just wertheimer well leave you the impact it has on the consumer what evidence you know you have a burden you can't jump to conclusions and say it's inherent what evidence did you put in that this is misleading deceptively misleading to person was a c a p a financial planner and the court said no that's burdensome so isn't burdensome still part of the test burdensome is and so why can't you do something that's less burdensome than that was misleading right so here person said he's a darn good lawyer sometimes a little exuberant sometimes a little over the top and cetera but he's a darn good lawyer work where how what survey do you have 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 is that strange using his attorney advertising ye i mean if they mean if that's whining and that has and what i the question i just asked the answer i just gave you just gave her i think has nothing to do with truth or falsity right 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 boys who who have had negative things or nothing said about them and 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 just said to you what if you put up but the other says hey folks this is not the worst me because i don't think that alleviates the impact it has such a substantial impact on someone reading that the drugs the judge said that he is you know what if somebody is a  to whether mr dreier is a good attorney or not it reflects his findings in that particular case in that particular kind of campaign the judge has the public context right yes so whether a judge comes to one conclusion in one case or another conclusion another case advertisers say one hundred things have happened dark consumers here's two really good things will put that forward right but i want i want to come back to this question that  nothing else reasonably related because the state's interest because the new jersey supreme court has a stringent view attorney advertising and it has vested in it from the new jersey state constitution unfettered discretion to regulate the profession said what was said here is inherently misleading yet 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 deem this to be a misleading statement because they made a committee on attorney advertising after so after becoming aware of what mr dreier was doing thought that it was necessary that we all they also needed an attorney advertising gu days wrote the following assessment of my beliefs and opinion retire earlier this year see for yourself that problematic and then link to the opinion yes these case by case determinations are for the consideration of the czerny advertising but as i understand it that should be permissible because he's not 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  my abilities in this particular case go take a look at it all right suppose so suppose you used an adjective before assessment and he said judge for those wrote the following phenomenal assessment of my abilities or wrote the following assessment of my beliefs 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 if it were especially when he says in my opinion it's phenomenal and again he's not taking the quotation or the expert excerpt out of the opinion he's giving his opinion on the on the exercise you know keep going he's going he's giving a little summary paragraph explaining hake this judge gave this opinion of my our 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 seventeen paragraph three judge wertheimer complimented me take a walk that's ok too whatever it can to make sure the consumer doesn't get to see the complimentary remarks you want if you want it buried in this twenty page transcript one of these was an even written opinion it was an oral transcript so you're hoping by order transcript you know you're hoping by by forcing mr dwyer to put war and peace out there or you know better yet you know the brothers karamazov to day they won't get to hear you know the speech at the end that ever wants to read because these case by case the terminations 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 him if he said judge pointers said favorable things about my abilities at page seventeen of this opinion take a look i think that's fine it only runs afoul when you take that judicial opinion that quote unquote or that x are out of context because then you're giving them the thing and why would anybody want to go look there it's right there that's what it said that's what the judge said judge said he was great why do i need to look at context well but when you say he said these great things about my opinion about my abilities in this opinion go take a look then the then the consumer goes and sees why the judge said those great when new jersey was considering adopting guidelines three by sumit look that what other states are doing is or any other state has adopted something akin or identical to the line three i do not know that off the top of my head here today i can submit something in thank you first of all i think we've got some clarification of the state's position they 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 testimonials which would be making comparative statements about attorneys that committee later adopted an opinion thirty three that took that back and said you know what we don't want you to make a pair of statements you can just say things like the attorneys nice they answer the phone quickly whatever but then opinion thirty three has been thrown out and as that their rule thirty six witness testified deposition the governing opinion for attorneys right now new jersey as you can  testimonials even if they make comparative statements about the attorney's abilities and coast testimonials are all over the internet in new jersey so her statement that you cannot make comparative statements about attorney's abilities in new jersey to run afoul  wrong when that when they were going and in the process of adopting or putting the language together for guideline three do you have any idea of what other states have similar kind of lunt like i said  our r p c seven point one seven point two which says attorney advertising you cannot make a false or misleading statement about the attorney's services and that's another thing the misguide said that was absolutely incorrect she said when you asked her why do you need guy like three she said well under younger abstention right so the other thing is this is where the ribbon vs couper's case i think is so significant it's just not rational for them to be saying that that average consumer seen the quotes is going to be so misled and so deceived but when they read it in the opinion if it willing to slog through forty pages of opinion somehow that's going to be ok even the rest the pain 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 jane of emotion so when it's on the amount of discussion about the attorney's ability is is a 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 that's wrong under even isn't under appeal 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 n 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 then every advertisement on t v would have to go on for five hours thank you very much