Ethics Opinion

Opinion 82-1

FLORIDA BAR ETHICS OPINION
OPINION 82-1
April 1, 1983
Advisory ethics opinions are not binding.
A 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.
CPR:
Case:

DR 2-101 [See current 4-7.13; 4-7.14; 4-7.16]; DR 2-102 [See current 4-7.21]; EC
2-1 through 2-15(a)
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 [See current Rules 4-7.13; 4-7.14; 4-7.16], 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,” [See current Rule 4-7.13] nor does it fall within any specific
prohibition of DR 2-101(B) [See current Rules 4-7.13 and 4-7.14(a)(5) and (6)].
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) [See current Rule 4-7.15(a)] 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 commands 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. [No current rule equivalent.]
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.