The Florida Bar
OPINION 82-1A lawyer's inclusion of the statement "Jesus is Lord" and a drawing of the dove of peace in his advertisements does not violate the commands of the Code of Professional Responsibility.
April 1, 1983
April 1, 1983
CPR: DR 2-101; DR 2-102; EC 2-1 through 2-15(a)
Case: In the Matter of R.M.J. , 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed. 64 (1982);
A Florida lawyer inquires whether he may under the Florida Code of Professional Responsibility include in his advertisements the statement, "Jesus Is Lord," under which appears the dove of peace.
Thirteen members of the Committee concur in the following opinion by Committee Chairman Thomas M. Ervin, Jr. Although this constituted a minority position of the Professional Ethics Committee, the Board of Governors of The Florida Bar has directed that this opinion prevail.
Under the Florida Code of Professional Responsibility and recent judicial pronouncements, the primary focus of lawyer advertising restrictions has shifted to prohibition of that which is fraudulent, deceptive or misleading. DR 2-101 and DR 2-102 provide specific prohibitions and EC 2-1 through EC 2-15(a) provide aspirational guidance. The former system of general prohibition of advertising with limited authorized exceptions no longer prevails.
In essence, the inquiry before the Committee is whether the statement "Jesus Is Lord" accompanied by portrayal of a dove in a lawyer advertisement is violative of DR 2-101. While the statement is not of such a nature, standing alone, to be "commercial" speech, its intended inclusion in a lawyer advertisement brings into play the foregoing rule.
Upon careful review of DR 2-101, and each of its subsections, the Committee is of the opinion that the intended statement and depiction of a dove do not fall within any express or specific prohibition. As a statement of personal belief, it does not fall within DR 2-101(A)'s proscription of statements which are "false, fraudulent, misleading or deceptive," nor does it fall within any specific prohibition of DR 2-101(B).
While DR 2-101(C)(5) and (6) are somewhat more pertinent, the statement does not appeal primarily to "fear, greed, desire for revenge or similar emotion" as proscribed by subsection (5) and is not of such a nature as to constitute "showmanship, puffery, self-laudation or hucksterism" as proscribed by subsection (6).
Ethical Considerations 2-1 through 2-15(a), as aspirational guidelines, cannot be the independent source of ethical prohibition as to this or any other inquiry. They may provide guidance to the individual lawyer in his consideration and selection of a course of professional conduct and may, where appropriate, guide this Committee in its construction of Code provisions. These aspirational guidelines emphasize the primary purpose of lawyer advertising to be informing the public of the availability of legal services without misrepresentation. They should not be read, however, to thereby mandatorily prohibit all expression or communication which is not objectively "useful" to the public in the attorney selection process. If so read, ethical considerations would be rendered mandatory despite the express command of the Supreme Court of Florida that disciplinary rules state the mandatory, minimum level of professional conduct and that ethical considerations are "aspirational in character."
Notwithstanding the foregoing, it is acknowledged that DR-101 is less than precise in some of its commmands and might be subject to a construction which extends to the instant advertisement. In seeking the proper construction, however, the Committee is provided guidance by recent pronouncements of the United States Supreme Court in related cases. In the most recent decision of the United States Supreme Court in In The Matter of R.M.J. , 455 U.S. 191, 71 L.Ed.2d 64, 102 S.Ct. 929 (1982), the court dealt primarily with, and disapproved, a ban on direct mail advertising. That decision and its recent predecessors, however, appear to generally restrict the state's ability to prohibit forms of advertising to those instances where the advertising is inherently misleading, or has proven to be misleading in practice, and prohibition is the only practical solution. As to non-misleading communications, the court held in pertinent part:
Even when a communication is not misleading, the state retains some authority to regulate. But the state must assert a substantial interest and the interference with speech must be in proportion to the interest served. Central Hudson Gas Co. v. Public Service Comm'n , 447 U.S., at 563-564. Restrictions must be narrowly drawn, and the state lawfully may regulate only to the extent regulation furthers the state's substantial interest....
Guided by the foregoing, the Committee is of the opinion that DR 2-101 should not be construed to extend to, and prohibit, a legal advertisement which includes the statement, "Jesus Is Lord," and a depiction of a dove. The statement in question, and others such as "Keep Florida Green," "Support Law Day," "Support ERA," or "Support the United Way," may attract some degree of attention but are more in the nature of personal expression than client inducement. No real or inherent danger of client deception is apparent. While the inclusion of such a message in a commercial advertisement may be viewed by many as "professional bad taste," the United States Supreme Court in In The Matter of R.M.J., supra , declined to recognize bad taste as a viable ground for restriction of commercial speech.
For the foregoing reasons, the Committee is of the opinion that the inquiring lawyer's intended conduct, and advertisement, do not violate the commands of the Florida Code of Professional Responsibility.
While expressing the foregoing opinion, the Committee cautions that not every form of speech or expression which might be devised will pass muster under the Code. DR 2-101 includes numerous specific prohibitions and expressly disapproves any public communication which:
(6) Is intended or is likely to attract clients by use of showmanship, puffery, self-laudation or hucksterism, including the use of slogans, jingles or garish or sensational language or format.
This is a mandatory admonition of the Supreme Court of Florida and, unless and until changed, constitutes one expression by that court of what should be viewed as deceptive or misleading in the context of lawyer advertising.