The Case of a unduly conspicuous Advertisement by a law firm and the First Amendment

The Supreme Court will step into this touchy question if it agrees to hear an appeal brought by two Fort Lauderdale lawyers against the Florida Bar. Some close questions of First Amendment law make it a tough case to call.

At least the facts are not in dispute. The two lawyers are John Robert Pape and Marc Andrew Chandler. Their practice goes primarily to personal injury litigation. Three years ago they began advertising their professional services through a series of television commercials. The commercials included a logo that featured an image of a pit bull wearing a spiked collar. The firm's telephone number was displayed: 1-800-PIT-BULL.

The Florida Bar charged them with violating its rules of professional conduct. After a one-day hearing in September 2004, special master William W. Herring ruled in their favor. He found nothing unethical in a commercial that promotes lawyers as bulldogs. The breed is identified "with the qualities a consuming public would want in a trial lawyer," e.g., that the lawyer is "aggressive, tenacious, loyal and persistent." He added:

"The advertisement is tastefully done, the logo is not unduly conspicuous in its replacement of an ampersand between the partners' names, and the large print 1-800 number is an effective mnemonic device. ... There are no slogans, jingles, alarm bells or the like, nor does the ad suggest a favorable outcome through the employment of improper means."

The Florida Supreme Court was not impressed by Herring's report. In a remarkably stuffy opinion last November, the court unanimously rejected the referee's recommendation. Instead, the court found Pape and Chandler guilty of unprofessional conduct. If that ruling is not reversed, the two lawyers must suffer a public reprimand from the bar's Board of Governors and must attend the Florida Bar Advertising Workshop.

Florida's Chief Justice Barbara J. Pariente held that by invoking the image of a pit bull, Pape and Chandler "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." The image of a pit bull evokes an image of a lawyer who is vicious to the opposition. Some pit bulls may be loyal, persistent and tenacious, but these charitable associations ignore "the darker side of the qualities often also associated with pit bulls: malevolence, viciousness and unpredictability."
The chief justice cited a study of fatal dog bites between 1979 and 1998. Pit bulls were charged with a third of them. She cited a string of court decisions attesting the dangerousness of the breed. She and her colleagues could not condone a TV spot suggesting that a lawyer will get results "through combative and vicious tactics that will maim, scar or harm the opposing party," but this is "precisely the type of unethical and unprofessional conduct" that is conveyed by Pape and Chandler on TV.

"Indeed," the chief justice concluded, "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. This type of non-factual advertising cannot be permitted ..."

The Florida lawyers are eloquently represented in the U.S. Supreme Court by professor Rodney A. Smolla of the University of Richmond School of Law. In his petition for review he argues persuasively that lawyers should not be punished for advertising "that is not false, fraudulent, deceptive, or misleading in any sense." Good point. Is the amorphous "dignity of the profession" an interest so overriding that it trumps a First Amendment right of commercial speech? Good question.

Lawyers have had a tough time of it at least since Luke wrote his gospel 2,000 years ago. "Woe unto you, lawyers!" Keats placed lawyers in "the natural history of monsters." Daniel Defoe called them "mountebanks." In his New Dictionary of Quotations (1942), H.L. Mencken rounded up 89 notable lines about lawyers: Only 13 citations had anything good to say about them. Unfair!

My own thought comes down to this: If I want to sue my doctor for a botched operation, give me a pit bull lawyer every time. And if I learn of his services on TV, so what?

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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