On August 11, 2014, the US Court of Appeals for the Third Circuit in Dwyer v. Cappell held that an attorney guideline banning advertising with quotations from a judicial opinion, unless the opinion appears in full, is unconstitutional and violates an attorney's First Amendment right to advertise his commercial services (No. 13-3235, (3d Cir. Aug. 11, 2014)).

In 2007, attorney Andrew Dwyer launched a website displaying advertisements that included excerpts from unpublished judicial opinions applauding his legal abilities as an attorney. The opinions were from employment discrimination cases and made in the context of fee-shifting provisions, which require judges to assess the abilities of the plaintiffs' attorneys.

In April 2008, Judge William Wertheimer requested that his quotation be removed from Dwyer's website but Dwyer refused. Their exchange was subsequently forwarded to the New Jersey Bar's Committee on Attorney Advertising, the appellees in this case. The Committee initially solicited comments on a proposed advertising guideline that banned all quotations from a judge or court opinion regarding an attorney's legal abilities or services. Dwyer, however, commented that this was an unconstitutional ban on speech. In May 2012, the New Jersey Supreme Court approved an amended version of the proposed guideline (Guideline 3), which bans attorney advertisements from quoting judges or judicial opinions unless the full text of the opinion is also displayed.

Dwyer filed this action in district court seeking injunctive and declaratory relief. He argued that the guideline was a restriction on non-misleading speech, requiring an intermediate level of scrutiny, while the Committee maintained that Guideline 3 only required a low level of scrutiny as a disclosure requirement targeting misleading advertisements. Using the less-stringent standard for disclosure requirements under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985), the district court granted the Committee's motion for summary judgment. The court found that Guideline 3 was not a restriction on speech but an additional disclosure requirement and that a judicial quotation had the potential to be misleading as an improper judicial endorsement of the attorney.

On appeal, the Third Circuit disagreed with the district court and held that the guideline was unconstitutional under the First Amendment as applied to Dwyer. The court declined to decide whether the guideline was a restriction on speech or a disclosure requirement because it found that the guideline did not even pass the less-stringent Zauderer standard of scrutiny. The Third Circuit held that Guideline 3 was:

The Third Circuit noted that providing a full opinion would not clarify to a potential client that the judicial excerpt was not an endorsement. In fact, adding a full opinion could actually add more confusion. Additionally, the guideline was unduly burdensome because it effectively prevented an attorney from employing short advertisements. The only realistic medium for quoting a full opinion would be on a website but the cumbersome nature of posting a full opinion would effectively nullify the advertisement. As a result, the Third Circuit held that Guideline 3 as applied to Dwyer violated his First Amendment right to advertise his commercial services and remanded the case. However, the court did not foreclose the possibility of an amended guideline that would pass constitutional muster. The court suggested that a proper disclosure requirement might be a disclaimer such as, "This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities."