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The Florida Supreme Court decided today that use of a 1-800-PIT BULLphone number and of a logo depicting the head of a pit bull violates the States’s Rules of Professional Conduct for lawyers. See Florida Bar v.John Pape and Marc Chandler, Fla. Sup. Ct., Case Nos: SC04-40/SC04- 41. Nov. 17, 2005. (our prior posts here, here and there) (see AP and Reuters, Nov. 17, 2005)

The Court begins:

“In this case we impose discipline on two attorneys for their use of television advertising devices that violate the Rules of Professional Conduct. These devices, which invoke the breed of dog known as the pit bull, demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice.”

For your information, this is a smaller, b&w version of the logo in question:

Pape & Chandler is a two-man personal injury law firm that specializes in
motorcyclist injuries. In September 2004, the referee/judge hearing the Florida
Bar’s case against Pape & Chandler, ruled that neither the 800-PIT-BULL telephone
number, nor the firm’s pit bull logo, violated the ethical Rules of the Florida Bar,
which were found to be unconstitutional as applied in this case. The FBA was
represented by Tallahassee lawyer Barry Richard. P&C appeared pro se in all
of the proceedings.

As we stated in September 2004: Your Editor is left asking the same
question he had 30 years ago in law school: When will the profession
see that it will earn the respect of the public through the personal integrity
of lawyers and the provision of quality services for reasonable fees — not
through some phony notion of “dignity” or by treating the public like children?
(see Indiana High Court Huffs and Puffs Over P/I Ads)

in full color here . . .

Here are excerpts from the Florida Court’s opinion, written by Chief Justice
Barbara Pariente:

We conclude that attorneys Pape and Chandler (“the attorneys”) violated Rules Regulating
the Florida Bar 4-7.2(b)(3) and 4-7.2(b)(4) by using the image of a pit bull and displaying the
term “pit bull” as part of their firm’s phone number in their commercial. Further, because the
use of an image of a pit bull and the phrase “pit bull” in the firm’s advertisement and logo does
not assist the public in ensuring that an informed decision is made prior to the selection of the
attorney, we conclude that the First Amendment does not prevent this Court from sanctioning
the attorneys based on the rule violations. We determine that the appropriate sanctions for the
attorneys’ misconduct are public reprimands and required attendance at the Florida Bar Advertising
Workshop.

The logo of the pit bull wearing a spiked collar and the prominent display of the phone number
1-800-PIT-BULL are more manipulative and misleading than a drawing of a fist. These advertising
devices would suggest to many persons not only that the lawyers can achieve results but also
that they engage in a combative style of advocacy. The suggestion is inherently deceptive because
there is no way to measure whether the attorneys in fact conduct themselves like pit bulls so as to
ascertain whether this logo and phone number convey accurate information.

In addition, the image of a pit bull and the on-screen display of the words “PIT-BULL” as part of the
firm’s phone number are not objectively relevant to the selection of an attorney. The referee found
that the qualities of a pit bull as depicted by the logo are loyalty, persistence, tenacity, and aggres-
siveness. We consider this a charitable set of associations that ignores the darker side of the qualities
often also associated with pit bulls: malevolence, viciousness, and unpredictability. Further, although
some may associate pit bulls with loyalty to their owners, the manner in which the pit bull is depicted
in the attorneys’ ad in this case certainly does not emphasize this association. The dog, which is
wearing a spiked collar, directly faces the viewer and is shown alone, with no indication that it is fulfilling
its traditional role as “man’s best friend.

lightning flash–
only the dog’s face
is innocent

……………………………..  Kobayashi Issa

This Court would not condone an advertisement that stated that a lawyer will get results through
combative and vicious tactics that will maim, scar, or harm the opposing party, conduct that would violate
our Rules of Professional Conduct. See, e.g., R. Regulating Fla. Bar 4-3.4(g)-(h) (prohibiting threats to
present criminal or disciplinary charges solely to gain an advantage in a civil matter). Yet this is precisely
the type of unethical and unprofessional conduct that is conveyed by the image of a pit bull and the display
of the 1-800-PIT-BULL phone number.

We construe the prohibitions on advertising statements that characterize the quality of lawyer services and
depictions that are false or misleading to prohibit a lawyer from advertising his or her services by suggesting
behavior, conduct, or tactics that are contrary to our Rules of Professional Conduct.

Indeed, permitting this type of advertisement would make a mockery of our dedication to promoting public
trust and confidence in our system of justice. Prohibiting advertisements such as the one in this case is one
step we can take to maintain the dignity of lawyers, as well as the integrity of, and public confidence in, the
legal system. Were we to approve the referee’s finding, images of sharks, wolves, crocodiles, and piranhas
could follow. For the good of the legal profession and the justice system, and consistent with our Rules of
Professional Conduct, this type of non-factual advertising cannot be permitted. We therefore conclude that the
1-800-PIT-BULL ad aired by the attorneys violates rules 4-7.2(b)(3) and 4-7.2(b)(4).

We also disagree with the referee’s conclusion that the application of rules 4-7.2(b)(3) and 4-7.2(b)(4) to
prohibit this advertisement violates the First Amendment. Lawyer advertising enjoys First Amendment protection
only to the extent that it provides accurate factual information that can be objectively verified. This thread runs
throughout the pertinent United State Supreme Court precedent.

The pit bull logo and “1-800-PIT-BULL” phone number are in marked contrast to the illustration of the Dalkon
Shield intrauterine device at issue in Zauderer, which the United States Supreme Court found to be “an accurate
representation . . . and ha[ve] no features that are likely to deceive, mislead, or confuse the reader.” 471 U.S. at
647. The Dalkon Shield illustration informed the public that the lawyer represented clients in cases involving this
device. The “pit bull” commercial produced by the attorneys in this case contains no indication that they specialize
in either dog bite cases generally or in litigation arising from attacks by pit bulls specifically. Consequently, the
logo and phone number do not convey objectively relevant information about the attorneys’ practice. Instead, the
image and words “pit bull” are intended to convey an image about the nature of the lawyers? litigation tactics.

“We conclude that an advertising device that connotes combativeness and viciousness without
providing accurate and objectively verifiable factual information falls outside the protections of the First
Amendment.”

Or, put succinctly: “Da mean dog demeans da profession (and confuses all dose consumers).”

Are you a lot prouder of your profession now? Do you feel more dignified and self-important? Is the public better protected?

update 5 PM: Tim Chinaris at SunEthics has a good summary of the opinion, and notes: “Significantly, in view of the emphasis placed on empirical support for a Bar advertising restriction in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), the Court did not address the portion of the referee’s order that noted that the logo and phone number were not misleading, deceptive, or improperly manipulative, and that the Bar “has made no record to the contrary, as to surveys or studies of the public” (emphasis in original).

 

update (Nov. 20, 2005): words and a logo for the Florida Supreme Court, which excerpts an excellent editorial from The St. Petersburg Times “Snarf. Growl. Meow?,” (Nov. 20, 2005) and suggests a logo for the Florida high court:

 

not a pit bull, but a lot of

update (Nov. 22, 2005) help choose a symbol for the Florida Supreme Court

update (Nov. 23, 2005): ” pit bull ” as compliment .

 

update (Nov. 21, 2005) At Legal Ethics Forum, Prof. McGowan has an astute reply to

the Florida Supreme Court,making many of the points we’ve made here (more eloguently

and professorially, of course), in “Another Ridiculous Anti-Advertising Case from Florida”

(Nov. 20, 2005). Likewise, Carolyn Elefant makes some pointedly apt remarks in her “An

Ethics Decision for the Dogs, at MyShingle (Nov. 21, 2005). Carolyn reminded me that the

Georgetown University mascot Jack the Bulldog might be inappropriate for lawyers to display.

It’s a good thing I’m in retired status, because I wore my GU sweatsuit, with Jack’s tooth-

bearing head over the weekend.

 

 

Here’s a portion of the Pape & Chandler reaction to the decision, from

their website:

“On November 17, 2005 the Florida Supreme Court rendered their decision in
the case of The Florida Bar v. Pape & Chandler. We were disappointed not only
by the result, but also by the Florida Supreme Court’s decision to ignore the law
regarding the scope of their review in this case, the Florida Supreme Court’s
decision to perform its own fact-finding in the case (to make up for the lack of
facts presented by the Florida Bar at the September 14, 2004 trial of the case),
and the degree of judicial activism demonstrated by the Florida Supreme Court.
We continue to believe that neither our telephone number nor our logo contravene
the Rules Regulating the Florida Bar, and are convinced that the November 17,
2005 decision of the Florida Supreme Court merely reflects the fact that the
officers of the Florida Bar (an arm of the Florida Supreme Court) just do not like
the telephone number or the logo. We, once again, invite you to read Judge Herring’s
Amended Final Order, the briefs of the parties to the case, and the opinion of the
Florida Supreme Court to form your own opinion as to the propriety of the Florida
Supreme Court’s opinion.”

update (Nov. 27, 2005): Salon‘s Robert Crook analyzes FBA v. Pape & Chandler

in his inimitable manner. Crook notes, for instance:

“I mean, you could just as easily — no, much more easily — say that the U.S. Supreme Court’s late-2000 Bush v. Gore decision “demean[ed] all lawyers and thereby harm[ed] both the legal profession and the public’s trust and confidence in our system of justice.”

 

“But nooooooooooooo, it’s things like mascots that are the black eye on the legal “profession,” so let’s go after shit like that.

Final – sad – Update: See our post reporting that the U.S. Supreme court rejects PIT-BULL appeal (March 27, 2006)

the first snowfall
doesn’t hide it…
dog poop

mother dog
blocks with her butt…
snowball

 

 

runaway kite!

the dog also eyes it

restlesslly

 

 

by Kobayashi Issa

translated by David G. Lanoue