May a law firm use the 411-PAIN phone number?
It would be misleading for a law firm to take over the widely publicized 1-800-411-PAIN phone number because callers are likely to associate it with the now-defunct qualifying provider service rather than an actual law firm, according to the Standing Committee on Advertising.
The committee, meeting June 27 at the Bar’s Annual Convention, voted 5-3 to hold that the Kanner & Pintaluga law firm could not use the well-known phone number on billboard advertising in parts of Florida.
Tim Chinaris, representing the law firm and who formerly represented 411-PAIN before the committee, said the former referral service closed last December. It sold the rights to use the number in South and Central Florida to another qualifying provider (who continues to advertise the number), while Kanner & Pintaluga, who he said uses the number in other states, wants to buy the rights to use it in North and Southwest Florida.
(Note: A recent Bar rule amendment changed the term “lawyer referral service” to “qualifying provider,” defined as anyone who links lawyers with potential clients for a fee. This story uses lawyer referral service and qualifying provider interchangeably.)
One reason the ad was found to be noncompliant was a concern that there would likely be confusion because another qualifying provider company is using the number in South and Central Florida and Kanner & Pintaluga’s actual office is in Boca Raton and it advertises meetings by appointment in other parts of the state, according to Bar staff.
Chinaris said the firm’s billboards will clearly include the firm’s name in large type and he said the position that people will be confused is only “supposition.”
“There is no evidence to support this supposition of deception, which means the interpretation of the rule can’t pass the muster of the First Amendment,” he said. “No reasonable person who sees the ad with the advertiser’s name in large type right next to it [the phone number] is going to be deceived.”
And any confusion for callers would be cleared up when the firm answers calls by giving the firm’s name, he said.
Chinaris said if a law practice is sold by one lawyer to another, that includes the right to use the phone number, which may have been prominently used in ads by the selling lawyer, and the committee’s action calls that into question.
“The Bar’s decision, if left in place, would prohibit the lawful owner or licensee of a legitimate telephone number from using that valuable property simply because another entity previously used the same number,” Chinaris said after the meeting. “Such a decision has far-reaching implications, and we believe that there is no justification for it.”
Committee member Zach Catanzaro expressed concern about the committee’s position. “One of the major, major aspects of trademark law is if you stop using a trademark, you lose the right to use the trademark,” he said and that would appear to be the case if the old company has closed.
But other committee members disagreed and voted to support the prohibition. Chinaris said he intends to appeal the committee’s decision to the Bar Board of Governors.
411-PAIN was one of the highest profile referral services in the state and, like a couple others, referred callers for both medical and legal services. For a time, the Bar and the Supreme Court considered a rule amendment that would have prohibited lawyers from belonging to services that referred callers to legal and other services stemming from the same incident, but that amendment was ultimately rejected.
