f/k/a archives . . . real opinions & real haiku

April 14, 2007

softpornEsq and the 1st Am: is Prof. Volokh fantasizing?

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 11:36 am

PlayboyBunnyN  Legal weblogs and their often neglected comment sections get busy whenever lawyer lewdness is the topic.  No one was surprised this week, then, when David Lat focused his legal tabloid Above the Law on the case of third-year Brooklyn Law student Adriana Dominguez, who — according to the NY Daily News — appeared last January on the Playboy TV series “Naked Happy Girls,” in an episode titled The Rock Star and the Lawyer.  At AtL, there was a lot of the usual sophomoric snickering, along with musing over whether law firms or clients would want to hire Adriana. 

         Things actually got a little lawyerly, however, when the question turned to whether Adriana’s escapade might cause bar applicant Dominguez to flunk the Character and Moral Fitness evaluation that is part of acceptance into the bar.  At Feminist Law Professors blog, South Carolina U. Prof. Ann Bartow concluded “I don’t think nudity is an ethical violation,” and called Peter Lattman of the WSJ Law Blog an “asshole” for even asking the question.

  PlayboyBunnyS  Let me make this clear (for the sake of Prof. Bartow and others who might condemn the messenger for his issue-raising message): I do not believe that appearing in this one softporn video should justify denying entrance to the Bar.  My question in this posting is whether a bar fitness committee might disagree and the courts uphold the rejection.  My concern arises in the context of recent efforts across the nation of bar groups, grievance committees and courts using ethics rules to maintain the dignity and image of the profession — especially given Ms. Dominguez’s desire to counter the reputation of lawyers as boring and the specific connecting of her performance by the producer with her status as a lawyer.

Constitutional Law and weblog maven Eugene Volokh gave us a considerably more thoughtful assessment of the issue than did Prof. Bartow, in his “Posing for a Playboy Video and a Would-Be Lawyer’s ‘Character and Moral Fitness” Evaluation’,” at Volokh Conspiracy (April 12, 2007; via Robert Ambrogi at LegalBlogWatch, “The Right to Bare Arms, Etc.,” April 13, 2007) Prof. V. sets up the facts with excerpts from the NY Daily News, including a quote from an unamed representation of the NY Bar’s Fitness Committee: “It may have an effect. It’s a possibility in the worst-case scenario that the person does not get admitted.”  After noting that “Rightly or wrongly, such behavior may make employers and clients think the less of you,” the Professor gives this analysis:

“[I]t seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity).

“The government has been historically granted some extra latitude when it comes to licensing lawyers. . . . But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here.”  [emphasis added]

Although Prof. Volokh has given us a thoughtful analysis, I’m afraid it may be wishful thinking — the kind of overly-optimistic assertion that is often used by strong advocates of free speech rights in the face of ethical limits on lawyer speech. (see my Comment at Consumer Law & Policy Blog, where first amendment claims were confidently raised against the recently adopted New York lawyer advertising rules) Before we say the courts would find this to be an easy 1st Amendment case, we need to consider recent machinations by the law profession’s Dignity Police, which strongly suggest that “a pretty powerful explanation of why the speech may undermine the administration of justice” may in fact not be required by the judiciary before lawyers are disciplined, disbarred, or denied bar membership based on their speech.    

dog black   The Dignity Police have been very active within the legal profession in recent years (see, e.g., our recent post on the bar’s undignified self-importance).  Although the instances have involved various aspects of lawyer advertising, I do not believe the context of “commercial free speech” can easily be discounted or ignored, given the stress that has been given to the link between “speech” that demeans the profession and the need to preserve public trust in the justice system.  As Professor Volokh notes, a lawyer may be disciplined (and, implicitly, denied membership) for “conduct that is prejudicial to the administration of justice,” under Model Rule 8.4(d).

       A prime example of bar and judicial concern over lawyer speech that demeans the profession is the battle of the Florida Bar Association’s ethics watchdogs and the Tallahassee firm of Pape & Chandler (which specializes in motorcycle accidents) over its use of a pit bull image in place of an ampersand in its letterhead and of the 800-PIT-BULL phone number.   The Bar had presented absolutely no evidence of consumer harm or of public views on the topic; what counted was the assumed affect on the Bar’s image.  The hearing referee specifically held that applying the bar’s advertising rules to ban the P&C pitbull — which, as you can see here is a dignified, sleepy-eyed, non-growling doggy — violates the First Amendment rights of lawyers Pape and Chandler.  The Florida Supreme Court strongly disagreed, in Florida Bar v. John Pape and Marc Chandler (Fla. Sup. Ct., 2005., pdf).  Here are a few excerpts:

”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.”

“[B]ecause 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.”

PitBullLogoS  pit bull banner

“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 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.”

“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.”

Click on the pit bull banner link above to see just how slight an “”explanation of why the speech may undermine the administration of justice” was required for the Florida Court to discipline Pape & Chandler.  At the public admonishment session, Florida Bar Association President Alan B. Bookman continued to stress their role as Dignity Police, saying that “Permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice.” 

FloridaMap  The U.S. Supreme Court could have curbed FBA’s overzealous Dignity Police, but in March 2006 it refused to hear Pape & Chandler v. Florida Bar Ass’n (see our prior post).  Were it ever to grant cert in such a case, I see little reason to hope that this Supreme Court would disagree with similar decisions, given its deference to “states’ rights” and the very high probability that it also buys into the lawyer dignity conceit.  Thanks to the Court’s inaction in P&C, the Florida Bar is currently continuing its campaign against bad taste by attacking tv ads for DivorceEZ.com.  (See our post in late March on the bar’s undignified elf-importance; as well as Spare Room Tycoon, and Legal Blog Watch)

      Of course, it isn’t just Florida which has shown such tendencies.  In 2005, South Carolina made it unlawful for a lawyer to advertise with “a nickname that creates an unreasonable expectation of results.”  [S.C. Code Section 39-5-39(1)]  See our prior post. New York’s new lawyer advertising rules similarly ban utilizing “a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.” Sec. 2000.6(c)(7)  As such rules are meant to reach innocuous nicknames like “The Hammer” and “Heavy Hitters,” it is clear that the worry is far more likely to be lawyer dignity and image than consumer protection and the prevention of misleading claims.  

Don’t forget: the rules in New York and South Carolina have been reviewed by the highest courts in each state prior to inclusion in the lawyer’s professional responsibility code — after public comment that surely raised free speech issues. 

     It’s clear, then, that ethics committees and reviewing courts in several states are highly likely to equate demeaning the image of lawyers with despoiling the entire legal system.  How outlandish is it, therefore, to suggest that appearing in softporn ventures that specifically play off the star’s connection to the legal profession would raise fitness issues for a bar applicant, by undermining the administration of justice?  The next question is:

How likely would it be that bar fitness committees are so prudish as to make the connection between widely-distributed softporn featuring a bar applicant and his or her fitness to be a lawyer?

You can draw your own conclusions in answering that question.  I suggest you take into consideration the following recent examples of bar neo-puritanism at work:

MassWeeklySuit  big  The brouhaha over this Jiwani ad’s appearance in Massachusetts Lawyers Weekly last November (as discussed in my posting “puritans, prudes and professional picklepusses,” which has many links and quotes) seems quite telling. The advertisement, which declares “a custom-tailored suit is a natural aphrodisiac,” ended up being pulled by MLW’s editor.  Leading the attack on the ad was the Massachusetts Women’s Bar Association, whose President, Kathleen M. O’Connor, wrote to MLWeekly that “As lawyers, we are obligated to fight against gender discrimination, in whatever form it may take,” and that “We expect more from this newspaper.”  In a necessarily unscientific online poll, the Boston Globe asked “Is this ad too risque?” and over 78% of the respondents said “no”.   

ERISALawyersATL   Similarly, writing at FemLawProfBlog last September, the very same Prof. Ann Bartow who gives Adriana a pass for appearing in porno, wanted to string David Lat up by his gavel — because he was holding an ERISA Lawyer Hottie Contest at Above the Law. (See our prior post, and Ambrogi’s at LegalBlogWatch)  Bartow called the Contest “mean and sickening.”  How far is that claim from one of demeaning the profession?

erasingS  I recall, but have not been able to locate online discussion of a recent episode in the legal community where a female lawyer was ordered or convinced to stop using an overly-racy photograph of herself in her ads. I’d appreciate an email or Comment giving details and/or links to relevant materials.

    update (April 15, 2007): Prof. Volokh wrote to say that I have only pointed to cases involving commercial speech, which “has long been less protected than other speech.”  The issue, of course, is whether noncommercial speech by lawyers has so much more protection than commercial speech that we can safely ignore the fact that the courts and the Bar have been (a) too willing to designate disfavored promotional activities as demeaning to the profession and then (b) too quick to equate the purported injury to lawyer image with injury to the legal system deserving of discipline.  Rather than assuming ample First Amendment protection, we should be letting the Dignity Police know that the legal profession looks far worse trying to defend its supposed dignity than it would by granting its members the broadest possible free speech rights (and thereby also giving the public credit for having more than half a brain). [update (April 17, 2007): see our post Dignity Police censure Felder for penning “Schmucks!”]

 

one button undone    fjudge 
in the clerk’s blouse    I let her
steal my change 

. . . by George Swede – from Almost Unseen (2000)

 

sua sponte — 
madame justice
catches me staring

. . .  by dagosan

 

PlayboyBunnyS – from Taboo Haiku: An International Selection (Richard Krawiec, ed., Avisson Press, Greensboro, 2005): 

 

Clothesline
the widow’s black lace panties
covered with frost
 

Warm breeze
the colt’s erection nuzzles
a daisy
 
. . . . . . . . . . . . . . . .. . . . by George Swede
 

 

me in one hand
a belt in the other
dads sings a lullaby

 

. . . . . . . . . by roberta beary, esq.

 

at the end of Lent the taste of you

 

. . . . by jim kacian

 

3 Comments

  1. […] Ed. wants you to know about this post from David Giacalone. What can I say? It’s more like a law review article than a blog post and my eyesight isn’t that great. The haiku’s nice. Again with the not getting what the big human deal is about the topic thing. Again: dog. Still, nice post. (Tall One just popped in and has this to say: “Put your glasses on and read it. It’s an awesome piece, and I agree it’s not as cut and dried as Volokh may have made it seem, in practical terms. In idealistic terms: the hell?!?! Of course it doesn’t matter!” So – there you go. And … there Tall One goes, out the door again, beach chair and suntan lotion in hand. Y’all, I think I’ve been Punk’d.) […]

    Comment by The SC Employment Law Blog » » Blawg Review #104 — April 15, 2007 @ 11:04 pm

  2. The ethical questions are interesting. The haiku delight me.

    Comment by Pearl — April 16, 2007 @ 8:45 am

  3. It seems, as we progress further into the abyss called Justice, that ethics violations have become more frequent. Should these numbers not, as a progressive society, be declining?

    Comment by Robert Dewey — March 26, 2008 @ 2:39 pm

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