Court disciplines lawyers for ‘1-800 PIT BULL’ TV ad
Court disciplines lawyers for ‘1-800 PIT BULL’ TV ad
The Ft. Lauderdale attorneys vow USSC appeal
Two lawyers who used a pit bull logo and displayed the phone number 1-800 PIT BULL in their television ad have been disciplined by the Supreme Court for violating Florida Bar advertising rules.
The court overruled the recommendation of the referee in the case and found the ad was not protected by the First Amendment. It approved a public reprimand for the lawyers and ordered them to attend the Bar’s Advertising Workshop within the next six months.
The lawyers involved, John Pape and Marc Chandler of Ft. Lauderdale, say they plan to appeal to the U.S. Supreme Court and won’t seek a rehearing from the state’s high court.
“I don’t believe that we are going to seek a rehearing. From a practical standpoint, it was a unanimous decision; there was no equivocation. I don’t think it would be very fruitful,” Chandler said. “We are going to appeal.”
The court ruled unanimously in the November 17 opinion, holding that the ad violated Bar rules because the image of the pit bull objectively had nothing to do with the type of services being provided by the law firm and improperly described the law firm’s services.
“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,” Pariente wrote. “We conclude that attorneys [John] Pape and [Marc] Chandler. . . 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.”
Pariente noted that the referee found that pit bulls are perceived as “loyal, persistent, tenacious, and aggressive” and were objectively relevant in the selection of an attorney, were not manipulative, and were protected by the First Amendment.
The referee also said the 1-800 PIT BULL phone number in the ad was merely a useful way to get the public to remember the law firm’s phone number. And the referee said the pit bull did not characterize the quality of legal services provided by the lawyers, but rather the quality or characteristics of the lawyers.
The court, though, rejected those findings.
The referee’s differentiation on quality of services “is an artificial distinction,” the court said. “At the very least, the printed words and the image of a pit bull in the television commercial could certainly be perceived by prospective clients as characterizing the quality of the lawyers’ services.” That violates Rule 4-7.2(b)(3) which prohibits self-laudatory language or words that characterize the quality of a lawyer’s or law firm’s services.
The court also concluded that the drawing of the pit bull in the ad was not objectively relevant to selecting a lawyer as required in Rule 4-7.2(b)(4). Such a drawing would only be permissible if the firm specialized in dog bite cases, Pariente said, noting the U.S. Supreme Court in one of its lawyer advertising rulings held that a drawing of a fist would not be allowed in ads.
“The logo of the pit bull wearing a spiked collar and the prominent display of the phone number. . . are more manipulative and misleading than a drawing of a fist,” the opinion said. “These advertising devices would suggest to many persons not only that the lawyers can achieve results, but also they engage in a combative style of advocacy.”
There is also no way to objectively measure if the lawyers conduct themselves like pit bulls, according to the opinion.
In rejecting the referee’s findings that pit bulls had a positive image of loyalty and tenacity, the court noted that several cities have banned them; one study found more people killed by pit bulls (including some pit bull owners) than any other breed, and that pit bulls have been bred to fight other dogs or track and attack other animals. Those are not images, the court said, it wants associated with the legal profession.
“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,” Pariente wrote. “Were we to approve the referee’s finding, images of sharks, wolves, crocodiles, and piranhas would 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.”
As for First Amendment issues, the court cited several U.S. Supreme Court cases. It then concluded that, “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.. . .
“[T]he 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.”
Chandler said he and Pape had a different conception of pit bulls and how the breed is perceived.
“The attributes which we attributed to a pit bull are strength, courage,. . . and tenacity and we think those are all traits that a potential legal consumer should and would want in an attorney,” he said. “We’re not the only people that attribute those qualities to the dog. The United Kennel Club attributes them.”
As for the phone number, Chandler said that was an easy way to get potential clients to remember how to contact them.
“We thought it was a good mnemonic device to help people who saw the ad remember the number,” he said. “The fact is the person who sees the ad is going to glean some information from the ad. If you give them a number they can’t remember, then they are not going to be able to use the information.”
A grievance case against Chandler and Pape was originally filed in 2001, and the initial grievance committee dismissed it but issued a letter of advice. A second complaint was filed alleging violation of different Bar rules (the Bar also could have refiled the initial complaint since it was dismissed without a finding of no probable cause) and went to the statewide grievance committee set up to handle advertising complaints. That committee found probable cause that the ad violated Bar advertising rules. But in the resulting hearing, the referee said the ad did not violate the rules and that the First Amendment protected the use of the pit bull logo and the 1-800 PIT BULL number. The Bar then appealed that finding to the Supreme Court.
In their brief to the Supreme Court, Pape argued for the two attorneys that the Bar failed to present any evidence at the hearing before the referee that the two violated Bar rules or that their ad wasn’t protected by the First Amendment. They also argued that little evidence was presented that the public negatively perceives pit bulls.
Indeed, Pape contended if the desire had been to invoke an image of viciousness or ruthlessness, “Respondents could have more easily and effectively conveyed those ideas by using a snarling dog bearing his fangs, showing a menacing expression, standing in attack mode, or actually attacking.”
Nor, he argued, did the Bar ever attempt to establish the two attorneys’ motive for using the logo and phone number.
“Complainant has evidently conjured omnipotent powers to come to the unwavering conclusion that ‘the reality of the matter is that respondents do not use a 1-800 PIT BULL telephone number and a pit bull logo showing a pit bull wearing a spiked collar for the purpose of associating themselves with the positive traits of pit bulls, such as ‘loyalty,’” Pape argued.
He also asserted that the Bar did not meet any of the requirements of a long line of U.S. Supreme Court rulings on First Amendment protections of commercial speech.
“Without proof or even the barest allegation that the logo and telephone number are false, misleading or deceptive, complainant stated no constitutional ground upon which a restriction of respondents’ commercial free speech may lie,” Pape wrote.
The complete opinion and the briefs for The Florida Bar v. John Robert Pape, case no. SC04-40, and The Florida Bar v. Marc Andrew Chandler, case no. SC04-41, can be found at the court’s Web site at www.floridasupremecourt.org.