Law Firm Website Can’t Include Judges’ Comments

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Has a judge said something complimentary about you as a lawyer? Shhh, don’t tell anyone. And certainly don’t publish the comments on your website. At least not in New Jersey. As reported at Law.com:

A New Jersey attorney is suing a Supreme Court panel over a ban on attorneys’ ads that quote judges’ favorable comments about them, claiming it violates the First and Fourteenth amendments.


Unless of course you include the entire text of the opinion. Pursuant to New Jersey Attorney Advertising Guideline 3:

An attorney of law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney my, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.

Ah, no problem, I would guess that most opinions would easily fit on a roadside billboard, at 12pt. font.

And of course, there’s good rationale for this rule:

such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials. As such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of RPC 7.1(a).

Right, because people need the entire opinion to understand what the judge really meant.

I know, I know, the public needs protection from us clever and highly-persuasive lawyers.

But to me, the irony is that rules like these actually lead to the public’s inability to distinguish one lawyer from another.

Should someone hire a lawyer because three judges paid him a compliment? No.

Is quoting a judge’s bona fide honest opinion about how a lawyer performed his services relevant to whether the lawyer is competent? Gosh, I would think so.

Certainly more relevant than stock boxing imagery (not FindLaw’s best showing), which, by the way, is completely permissible under the rules.

Don’t publish prior results that you’ve obtained for clients. Don’t publish real compliments made by clients and colleagues.

And if you publish anything that could possible be interpreted as an advertisement, you better plaster it with disclaimers.

But go ahead and publish as many of those “professional badges” for which all you did was pay.

These definitely help protect the public from being misled… Let’s make every lawyer look exactly the same.

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  • Andrew

    Well, I can see the logic if viewed from the angle of misappropriation…while a judge is not a celebrity, I am certain that they do value their ability to write candid and independent opinions without seeing unfair excerpts of those opinions plastered on billboards. Let’s say that we have a lawyer malpractice case. If a judge says that they find that “John Smith wholly lived up to his professional obligations.”, the layperson may give that opinion much more credit than it is probably worth. While we attorneys know that the judge is referring to only whether or not malpractice was committed, which is a very low standard, that context isn’t presented to the average individual.

    Furthermore, since Judges are elected individuals, allowing their words to appear as endorsements on billboards can create issues regarding their own re-election campaign. What if John Smith is roundly hated in the community, but he didn’t commit malpractice? Should the judge be required to avoid any language in the opinion that could be taken out of context in a billboard?

    Finally, a lawyer quoting a judge on a billboard may create the false impression that a particular attorney has an in-road with a particular judge and can get a more favorable result from that judge. We should strive to improve the public’s perception of the ethical nature of the legal practice, and that means limiting the public perception of impropriety in the relationship between lawyers and judges.

    In conclusion, while I think that most advertising regulations are silly, I do support this one. While it’s unfortunate that some attorneys would abuse these comments if allowed, we sometimes have to accept unfortunate results in order to protect the larger public.

    • Gyi

      Some good counter-points. However, even this rule permits the quotes, so long as, the entire opinion is used.

      And what about judicial compliments outside of an opinion?

      • Andrew

        Well, outside an opinion and with the judge’s consent, that’s another matter entirely. However, judges write things in opinions at time to support certain propositions that can be taken out of context. And while, yes, this rule allows the whole opinion to be reprinted, it essentially guts the opportunity to use those quotes.

        A few years ago, I was at the Capital Fringe Festival, a theater festival in Washington, D.C. One of the plays had been panned by the Washington City Paper as an “Incredible waste of time!” This play handed out fliers advertising –

        “…Incredible…!” – Washington City Paper

        This was, of course, a joke, and everybody got it…but this sort of thing can happen very easily.

  • Back in 2009, a federal judge said some nice things about me in his opinion:

    Mr. Glover is obviously a skilled practitioner in the field of consumer law and has developed an excellent reputation in his field . . . .

    I put it up on my firm website right away and included a link to the opinion, but I didn’t try to quote the entire opinion in my update. Seems like that — or a citation, if it’s in print — ought to be enough.

    • shg

      Heh. When a judge has something nice to say in an opinion, it’s usually because you lost or he’s about to screw you (as in, there is no prejudice in the other side having failed to provide discovery since Mr. Glover is a skilled practitioner…) Beware judicial compliments. They rarely come without a price.

      • In that case, the price was $4,987.20 and an unfavorable footnote that sounds like something you might have written:

        Plaintiff’s attorneys did not help themselves by starting their Memorandum by with the following bit of self-promotion: “Due to the unique facts and unusual claims in this lawsuit, counsel for Gorton carefully drafted, reviewed, and revised the Complaint.” (Doc. No. 19 at 1-2.) This Court expects that attorneys admitted to this Court will always make a careful—indeed painstaking—review of their submissions and will not treat careful preparation as an extraordinary event.

        Fair enough.

        • shg

          What!!! That’s outrageous, expecting you to do “painstaking” work when you’re old getting paid at groupon rates. It’s just another barrier to entry to nasty old men trying to maintain the status quo on the backs of brilliant baby lawyers who have no choice but to self-promote. After all, it’s not like judges get to decide their clients’ fate or anything. Oh wait…

  • My concern is that most bar regulations are aimed at protecting the status quo. Lawyers with decades of experience (and decades of client lists built up) are uncomfortable with the new young lawyers who are trying to attract clients. So, they make rules that make it more difficult to do that. To me, it just looks like an artificial barrier to entry that protects established lawyers.

    • Bingo. Let’s protect the status quo at all costs.

    • shg

      Don’t those nasty old judges realize how vital they can be to a young lawyer’s marketing and self-promotional efforts. Have they no shame?!?

      • As the main post says, if a judge says, “XYZ lawyer is awesome and does great work,” how does it hurt the public to know that?

        • Andrew

          Read my comment above. These things can be taken far out of context. Also, the public could see a judge praising an attorney for, say, an excellent trial and mistakenly believe that the judge would also recommend that same attorney for transactional matters or a trial in a different area of law.

          • So, let’s ban an attorney from including a statement by a judge ON THE PUBLIC RECORD because someone might take it to be a blanket endorsement that said attorney is the best attorney ever. While we are doing that let’s ban prior client endorsements. Because that idiot John Q. Public might take not be able to distinguish one person’s opinion from fact. Heck, let’s ban anyone from recommending an attorney to someone else period, because that could be misleading as well to a total moron.
            Smh…

        • shg

          As noted above to Sam’s comment, often a judge will soften a blow to a lawyer by saying something nice before slam-dunking the the lawyer or the case. It’s not meant to be used in advertising, nor is it really a compliment. To use it as such, particularly out of context as Andrew notes, can be deceptive.

          Deceptive is bad. Deceptive hurts the public.

          If a judge approved of his comment to be used in attorney advertising, and it was used in a manner that wasn’t deceptive, I wouldn’t have a problem with it. I don’t suppose, however, that a lot of judges would do so. They generally don’t want to become part of a lawyer’s self-promotional campaign.

          • So the response is to throw the baby out with the bath water? Isn’t misleading advertising already against the rules in every jurisdiction already?

            • Andrew

              Well, from a practical standpoint, if a judge doesn’t consent to your using a quote of theirs on a billboard and you use it, your relationship with that judge will suffer greatly, which will likely impact your career in a far greater way than any miniscule boost the quote would give you on your billboard effectiveness.

              Furthermore, I’m currently studying for the bar exam, and if I’m not mistaken, the use of such a quote out of context with the judge’s name and without their consent could potentially constitute a tort of misappropriation, much like with the famed Vanna White case.

              Finally…Let’s be honest. Is a quote from a judge *really* going to be the deciding factor for a consumer? The type of person who hires a lawyer based on a billboard ad isn’t going to know who Judge Smith is any more than somebody five states over.

  • This last paragraph makes my point even better than I could…

  • I agree with the rule that forbids using a recommendation or compliment from a judge without printing the entire opinion. If the compliment was put in an opinion, it was meant for publication. Judges are not allowed to give endorsements because it could be seen as a conflict or prejudice in the next case. Consider if your opponent had been complimented on their last case before a certain judge and now you are appearing against that attorney before the same judge. If the judge rules against you, would you think that the judge was prejudice against you and favored your opponent? Really? Even if the law and the facts were in your favor and the judge ruled against you??
    Printing a compliment on your website from a judge is an endorsement.
    If my opponent had such an endorsement and we were in front of the judge who gave such endorsement, I might move to have the judge recused or the opponent removed or disallowed from representing the other party. Failure to do so would be a mistake.
    Making such a motion might be a mistake as well. Judges should not give endorsements.

  • Drew

    I just happen to have spent several hours the past couple of weeks reading the string of 1980’s-on Supreme Court opinions on attorney advertising. Ont thing that stands out is the lack of anything like a consensus on the Court. O’Connor was adamantly against lawyer ads; Brennan and Marshall adamantly for them. But all of those judges are gone now, and “the law” is only clear at the extremes:

    –attorney advertisements and solicitations=commercial speech entitled to qualified protection under first and fourteenth amendments;
    –state (acting through bar association or state supreme court rules) cannot enact a prophylactic ban on all types or categories of advertising without a showing of (i) substantial state interest, and (ii) narrowly-tailored proscription that is necessary and not capable of meeting the substantial need through less restrictive means;
    –the only prophylactic categorical ban that my research (thus far) is on in-person solicitation (a la traditional “ambulance chasing”). Emphasis on in-person (due to two features: (a) the prersuasive abilities of the lawyer may overwhelm the client, and (b) the lack of ability of the bar/courts to monitor the lawyer’s conduct–as compared with published ads or letters);
    –No permissible ban on targeted direct-mail to potential clients (e.g., people whose homes have been foreclosed upon) who are in a position to need the solicited services (help fighting foreclosure);
    –state always ban “deceptive and misleading” advertisements or solicitations. N.B. this is not a license for prophylactic bans absent compelling situations (see in-person discussion above).

    My sense, based upon the above (admittedly incomplete research), is that the challenged proscription will fail. Since quoting judges published opinions are certainly not *always* (or even overwhelmingly) misleading, it does not meet the “substantial” (read compelling) need of Oralick (1978). Moreover, the state could readily require such ads to be submitted to the bar for prior review before publication (rather than an outright ban). Moreover, the less-restrictive alternative for websites or emails (e.g., clickable link to the full text of opinion) is clearly available for some ads.

    It doesn’t matter if some of us “like” or “dislike” the ads, or the practice, or what some slimey lawyer *might* do. If a lawyer manages to tangibly mislead through judicial quotes (or any other means), he/she could be sanctioned for that. Its a First Amendment analysis. Under that analysis: no a priori ban here.

    Now, whether any of the current Justices would read/apply the case law from the ’70’s-’80’s this way is anyone’s guess . . . .

  • Another thought from a totally different approach: Maybe the lack of a ban would provide an impetus to keep the amount of Dicta in a decision down. As a criminal defense attorney, it always seems that the dicta in COA and SC opinions does nothing but hurt my clients anyway.

  • Gyi, you know I’m reflexively opposed to most attorney advertising regulation. But I have a hard time thinking of a scenario in which taking a quote about a lawyer from a judicial opinion wouldn’t be deceptive.

    And while bans on testimonials from clients, colleagues or opposing counsel are plainly unconstitutional, I think the bar could easily meet the Central Hudson requirements here. It wouldn’t be hard to make the case that these types of “endorsements” run contrary to the administration of justice.

    • Drew

      Josh: Have you actually read the S.Ct. cases? The sweeping argument you make–that judicial quotes “runs contrary to the administration of justice,” is just the kind of broad, sweeping argument rejected multiple times. Moreover, it makes little sense practically. Judges are among the most esteemed, trusted voices in our society. To quote them is hardly “inherently misleading.” In fact, we are all taught in law school that a persusasive brief MUST quote judges. Example : I practice class acation law. There are plenty of judicialhudicial opinions (some of which I disagree with) lauding plaintiff’s counsel in an opinion awarding fees. On what conceivable constitutional basis may I (or the bar)
      E u

      • Uh, yeah, I’ve read the cases. The fact that you’re equating advertising with citations in legal briefs tells me you haven’t quite grasped the issues here.

        • Drew

          Sorry; I don’t understand you. You argued: “But I have a hard time thinking of a scenario in which taking a quote about a lawyer from a judicial opinion wouldn’t be deceptive.” Does that mean any quote from a judicial opinion (without quoting the entire opinion) is almost always “deceptive”? If so, why do we insist that lawyers quote passages from judicial opinions in their briefs to be taken seriously?

          I gave you a common scenario (which I have seen many times) where judges say nice things (and no bad things) about lawyers in judicial opinions. Can you explain how quoting those nice things would be “deceptive”?

          All of this even more ridiculous when one considers the absurdly low bar for typical (non-lawyer) commercial speech to be broadcast ont.v., radio, and the internet tens of thousands of times an hour. I get that we are a profession, and want to hold ourselves to a higher standard. And, as noted,

        • Drew

          (cont.) …, the states can bar an lawyer’s actual deceptive or false advertisement. Still, we are talking about *advertising*. To employ an elevated concept of “deceptive” that require, for example, a lawyer to quote every (however slightly) negative thing a judge ever said about him if he quotes a positive comment would effectively make it impossible for a lawyer to say anything at all, for instance. As you concede–it is unconstitutional to bar attorneys from quoting client testimonials–even if they don’t also quote all the bad things clients say.

          • It shouldn’t be this hard for you to see the material difference when talking about quotes from judicial opinions vs client testimonials. Judges aren’t intending the comments to be used as testimonials, and the selective use of these comments likely leads to an (unwarranted and inappropriate) impression of the ability to get results from that judge.

            If you review the case law more carefully (including the circuit court cases), you’ll find that restrictions on attorney advertising are consistently upheld provided the bar can produce some facially-reasonable basis for their regulation. Which they can easily do here. In this respect the bars are informally held to a lower standard than other regulators, but that’s life. The reason the bars lose so often is that this advantage typically renders them arrogant and overreaching. And that’s the only way NJ
            loses here – if they haven’t papered their trail by commissioning some social science research on the negative impacts of judicial testimonials.

            • shg

              lol. Josh, have you not met the future lawyers of America before? If you keep this up, you’re going to be getting an invite from the Curmudgeon’s Club. Now give Drew a nice tummy rub and tell him how fascinating he is. Pretty soon, he’ll see something shiny and forget all about this.

              • Drew

                O.K.–I guess 24 years of practice put me in the “future lawyers of america” league and not (yet) qualified for the curmudgeon club. I did not intend for this to get ad hominem. I was attempting to focus the discussion on the Supreme Court case law on point. And–absent some change on that score (which I freely admit may be forthcoming given the change in composition of the Court)–“papering the trail” is not even close to the issue. The bogey-man hand-wringing about the public’s inability to discern the words of a judge absent the full text of the opinion is simply not enough to support a blanket ban under the majority opinions in the Supreme Court cases that I’ve read. Ohralik is clearly distinguishable, and probably hurts NJ’s rule more than it helps. If you can actually pin-cite majority opinions (rather than attitudes) that support your analysis, that would help move the discussion forward. Thanks, Drew.

                • shg

                  Josh already gave it to you. I argued one of the primary appeals on lawyer advertising issues, Stern v. Bluestone, relied on by the ABA’s 20/20 commission. What Josh is trying to tell you is that you’re just completely wrong. Me too. This isn’t an esoteric discussion. Josh fights this daily. I’ve fought it in the NY Court of Appeals on 1st A grounds. Quoting a judicial opinion in court papers and quoting them in self-promotional commercial speech are completely, totally, utterly different.

                  You’ve spilled a whole lot of words on this issue, and as Josh has said, you’re just completely wrong. It’s not a discussion. This isn’t sophisticated lawyering. This is basic stuff, and your inability to understand the distinction suggests that you’ve wasted 24 years of your life. And if you want to get credit for 24 years of practice, then use a real name and link to your website. Otherwise, you’re a 12-year-old pretending to be a lawyer on the internet.

                  • Drew

                    Nice! By your “logic,” Josh is a 12-year old since his name does not link to a website!

                    Moreover, he only cited Central Hudson–a case that does not involve attorney advertising at all, but instead threw out a N.Y. public service ban on electric utilities advertising re electrical usage ostensibly in order to further conservation. While the Court found that energy conservation was a “substantial interest,” it struck down the based upon “the critical inquiry in this case: whether the Commission’s complete suppression of speech ordinarily protected by the First Amendment is no more extensive than [*570] necessary to further the State’s interest in energy conservation.” Because the regulation banned *some* pro-conservation advertising, the ban failed did not pass constitutional muster. Since N.Y.’s ban on all judicial quotes (w/o the full opinion) would clearly ban some accurate praise, it is “more extensive than necessary” to further whatever interest is trying to be promoted here.
                    And guess which way this quote from Central Hudson would cut here:

                    “Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible [*562] dissemination of information. In applying the First Amendment to this area, we have rejected the “highly paternalistic” view that government has complete power to suppress or regulate commercial speech. “[People] will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . .” Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561-562 (U.S. 1980) (citing Virginia Pharmacy at 770). In my view, many of the arguments advanced above to support N.Y.’s ethic rule are similarly “paternalistic.”

                    BTW, I did read Stern v Bluestone (congrats). As you know, it is not a first amendment lawyer advertising case at all, and provides zero constitutional analysis, but simply holds that the unsolicited faxes at issue were not “primarily advertising” under the federal junk fax statute involved.

                    Sad to see we may have a lawyer-troll here, but just in case you may actually doubt my bonafides and not just want to spit insults, you can review my bio here: http://www.linkedin.com/pub/andrew-mcguinness/9/261/579. Thanks, Drew.

                    • I’ll try a slightly more diplomatic approach than Scott’s:

                      1) Guessing at the Supreme Court’s current view on the commercial speech doctrine isn’t important (although you can read last year’s Sorrell decision to see where it currently stands). SCOTUS is highly, highly unlikely to hear this case.

                      2) Go read the lower court decisions to see how judges actually apply the Central Hudson test against real attorney advertising restrictions. There are many, many examples. But you could start with the district court decisions in Alexander v. Cahill and Texans Against Censorship v. State Bar of Texas and the circuit court decision in Chambers v. Stengel.

                      3) As you read more of these cases – cases that deal with facts and evidence, and not just the law – you will discern a pattern. Outrageous, overreaching regulation, not backed up by any empirical evidence other than the bar’s “gut”, is routinely tossed. In closer cases, and especially those where the bar has any sort of evidence to hang its hat on, the regulations are routinely upheld.

                    • Drew

                      Thanks, Josh. This is helpful.

                      I read Sorrell (not a lawyer ad case), and did not find it all that illuminating–though I do think that the majority opinion’s citation of Bates as follows offers support for the vitality of the earlier Court’s critical review of lawyer ad bans. That Alito, Roberts, Scalia, and Thomas signed on to Kennedy’s opinion is rather telling on this score (since these include some of the judges I would have thought most antagonistic to application of First Amendment principles to strike lawyer ad regulations).

                      Chambers v Stengell (6th Cir) was a relatively easy case (ban on contacting accident victims w/in 30 days), as the S. Ct. had already ruled that way in Florida Bar Assoc. vs. Went For It (though it raised some interesting due process issues). That leaves Alexander v Cahill 598 F.3d 579 (2d Cir 2010) and Texans Against Censorship v State Bar of Texas. I think that the latter supports your conclusion, but not the former. Judge Calabresi in the 2010 Alexander case presents an analysis that strongly supports the early Supreme Court caselaw that critically reviews lawyer advertising bans. That court rejected almost all of the restrictions at issue. I don’t see it supporting a conclusion that lawyer ad restrictions will be upheld “where the bar has any sort of evidence to hang its hat on.” The discussion of the ban on portrayals of judges in ads is particularly illuminating vis-a-vis the NJ regulation at issue here:

                      “b. Subsection 1200.6(c)(3): Portrayal of a Judge.
                      This subsection prohibits “the portrayal of a judge.”
                      N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.6(c)(3). 10
                      The Task [*93] Force Report observes that “a
                      communication that states or implies that the lawyer has
                      the ability to influence improperly a court” is “likely to be
                      false, deceptive, or misleading.” (Task Force Report,
                      App. I, 11) [**31] The District Court found this
                      comment to be persuasive evidence that a ban on
                      portrayals of judges would materially advance the State’s
                      interest in preventing misleading advertising. We
                      disagree. Although it seems plainly true that implying an
                      ability to influence a court is likely to be misleading,
                      Defendants have failed to draw the requisite connection
                      between that common sense observation and portrayals of
                      judges in advertisements generally. The advertisement in
                      which Alexander & Catalano use the portrayal of a judge,
                      for instance, depicts a judge in the courtroom and states
                      that the judge is there “to make sure [the trial] is fair.”
                      This sort of advertisement does not imply an ability to
                      influence a court improperly. It is not misleading; an
                      advertisement of this sort may, instead, be informative.
                      We believe the Task Force Report fails to support
                      Defendants’ prohibition on portrayals of judges and
                      conclude that Defendants have not met their burden with
                      respect to the wholesale prohibition of portrayals of
                      judges. This prohibition consequently must fall.” (fn. omitted).

                      I agree with you that Texans Against Censorship, 888 F. Supp. 1328 (E.D. Tx 1995), aff’d w/o opinion by the 5th Cir., applies a far more deferential standard, and supports your view. My sense so far, however, is that this case is an outlier, not mainstream. The fact that it is a 1995 district court case and that the Fifth Circuit did not write an opinion probably diminish its persuasiveness. And other courts have simply rejected its reasoning, e.g., Michel v. Bare, 230 F. Supp. 2d 1147, 1153 (D. Nev. 2002) (granting injunction against Nevada State Bar on first amendment grounds where bar sought to prohibit the use of trade names, which Texans Against Censorship upheld).

                      So far–putting aside Texans Against Censorship–I have found federal courts upholding prophylatic bans on false and misleading ads (S.Ct.); in-person solicitation (S.Ct.); a 30-day ban on direct mail solicitation of accident victims (S.Ct.; 6th Cir.); and ban on use of fictitious law firms as inherently misleading (2d Cir.). I’m sure that I am missing others. Also, I have not gotten my arms around the law on to what extent the states can require disclosures (an issue in the NJ regulation here at issue, which requires publication of the full opinion of the judge who is being quoted).

                      Josh: You seem to be relatively well-read in this area. Can I inquire as to your interest/involvement in the topic? Can you recommend a good secondary treatise or survey on it?

                      It occurs to me with (a) the growing importance of websites and email and social media to lawyer promotion and marketing; and (b) the enhanced pressure on a solo or small-firm lawyer to get his/her name out to prospective clients, that this is a topic that many of us solos (myself included) need to get a better grip on sooner rather than later. I rather regret that I did not pay more attention to it all those years I spent in big firms…. Drew.

                    • Drew –

                      With respect to required disclosures: The state has more latitude to regulate; disclosure requirement need only be “reasonably related” to the state’s interest. See Zauderer v. Office of Disciplinary Counsel. But if the disclaimer requirement operates to effectively prevent marketing, it flips back to the Central Hudson test. See Ibanez v. Florida.

                      Re my interest: I’m Avvo’s general counsel. I run across these attorney advertising issues everywhere. I don’t know of any secondary resources, but I’ve written quite a bit on the topic (most recently here: http://www.callawyer.com/Clstory.cfm?eid=922755) and I regularly speak about this stuff as well. I’m giving a free ethics CLE webinar in August: https://www2.gotomeeting.com/register/440230450

                  • r. dernister

                    You actually had to deal with Andy Bluestone? You’ve got my sympathy.

  • Drew

    (Cont.) … stop a lawyer from quoting the praise? The judge said it, and presumably meant it. In fact, this shouldn’t be that hard of a case–unless the Court effectively rolls back the first amendment jurisprudence.

  • r. dernister

    About 25 years ago, a state supreme court judge sent me a letter regarding a criminal trial over which he had presided. I had sent him a courtesy copy of the appellate brief I filed on behalf of the defendant/appellant, and in that brief I argued the trial judge’s jury instruction was grievously wrong, but the error was understandable. I received a totally unexpected letter from the judge praising my “magnificent” brief and admitting he had probably made a serious mistake. I was amazed. I was even more amazed when he released the letter to the local daily newspaper and gave an interview in which he apologized to my client: front page news. Some judge, eh? Now, since the judge was fearless (and just) enough to make his compliments and errors public, I suppose I could’ve made use of his praise (it really was a pretty decent brief, if I do say so myself) . . . but I didn’t. Ethics aside, it wouldn’t have felt right, although obviously I’d reference only that portion of his letter regarding my “magnificent” (ho ho) brief and not his confession of error. So I never did. The judge is long dead, a very real loss to all concerned. And my long-ago client? Judgment reversed on appeal with a one-paragraph decision marking the end of a life sentence for my client. Now — and more to the point — the judge’s kind words were not in a judicial decision. Given the changes in interpretation of attorney advertising law and rules over the past 25 years, if a judge today were to make public written compliments such as these (don’t hold your breath), would they be usable?