The Florida Bar v. Pape
| Decision Date | 17 November 2005 |
| Docket Number | No. SC04-41.,No. SC04-40.,SC04-40.,SC04-41. |
| Citation | 918 So.2d 240 |
| Parties | THE FLORIDA BAR, Complainant, v. John Robert PAPE, Respondent. The Florida Bar, Complainant, v. Marc Andrew Chandler, Respondent. |
| Court | Florida Supreme Court |
Barry S. Richard and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, FL, for Complainant.
John Robert Pape and Marc Andrew Chandler, Pro se, Fort Lauderdale, FL, for Respondents.
In this case we impose discipline on two attorneys for their use of television advertising devices that violate the Rules of Professional Conduct. 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.1
We conclude that attorneys Pape and Chandler ("the attorneys") 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. We determine that the appropriate sanctions for the attorneys' misconduct are public reprimands and required attendance at the Florida Bar Advertising Workshop.
On January 12, 2004, The Florida Bar filed complaints against the attorneys, alleging that their law firm's television advertisement was an improper communication concerning the services provided, in violation of the Rules of Professional Conduct. The advertisement included a logo that featured an image of a pit bull wearing a spiked collar and prominently displayed the firm's phone number, 1-800-PIT-BULL. The Bar asserted that this advertisement violated the 2004 version of Rules Regulating the Florida Bar 4-7.2(b)(3) and 4-7.2(b)(4), which state:
(3) Descriptive Statements. A lawyer shall not make statements describing or characterizing the quality of the lawyer's services in advertisements and written communications; provided that this provision shall not apply to information furnished to a prospective client at that person's request or to information supplied to existing clients.
(4) Prohibited Visual and Verbal Portrayals. Visual or verbal descriptions, depictions, or portrayals of persons, things, or events must be objectively relevant to the selection of an attorney and shall not be deceptive, misleading, or manipulative.2
The referee found that the attorneys did not violate rule 4-7.2(b)(3), the distinction that the logo and telephone number "describe qualities of the respondent attorneys" but do not describe or characterize "the quality of the lawyer services." The referee also rejected the Bar's assertion that the ad violated rule 4-7.2(b)(4). After noting that pit bulls are perceived as "loyal, persistent, tenacious, and aggressive," the referee found these qualities
objectively relevant to the selection of an attorney as they are informational, because these are qualities that a consuming public would want in a trial lawyer ... and the ad is not improperly manipulative.... The advertisement is tastefully done, the logo is not unduly conspicuous in its replacement of an ampersand between respondents' names atop the TV screen, and the large print 1-800 number is an effective mnemonic [device] tailored to maximize responses from potential clients.
The referee also concluded that the ad was protected speech and therefore that an interpretation of rules 4-7.2(b)(3) and 4-7.2(b)(4) to prohibit the ad would render the rules unconstitutional as applied.
Generally, a "referee's findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record." Fla. Bar v. Senton, 882 So.2d 997, 1001 (Fla.2004) (quoting Fla. Bar v. Wohl, 842 So.2d 811, 814 (Fla.2003)). However, where there are no genuine issues of material fact and the only disagreement is whether the undisputed facts constitute unethical conduct, the referee's findings present a question of law that the Court reviews de novo. See Rykiel v. Rykiel, 838 So.2d 508, 510 (Fla.2003) (); Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001) (). The facts are not in dispute, and therefore our review is de novo.
As a preliminary matter, the pit bull logo and 1-800-PIT-BULL telephone number in the ad by the attorneys do not comport with the general criteria for permissible attorney advertisements set forth in the comments to section 4-7 of the Rules of Professional Conduct. The rules contained in section 4-7 are designed to permit lawyer advertisements that provide objective information about the cost of legal services, the experience and qualifications of the lawyer and law firm, and the types of cases the lawyer handles. See generally R. Regulating Fla. Bar 4-7.1 cmt. The comment to rule 4-7.1 provides that The television commercial at issue here uses both a sensationalistic image and a slogan,3 contrary to the purpose of section 4-7.
More specifically, the attorneys' ad violated rule 4-7.2(b)(3), which prohibits the use of statements describing or characterizing the quality of the lawyer's services. In Florida Bar v. Lange, 711 So.2d 518, 521-22 (Fla.1998), we approved the referee's finding that an advertisement that stated "When the Best is Simply Essential" violated the predecessor provision to rule 4-7.2(b)(3) because it was self-laudatory and purported to describe the quality of the lawyer's services. In this case, the simultaneous display of the pit bull logo and the 1-800-PIT-BULL phone number conveys both the characteristics of the attorneys and the quality of the services they purport to provide. 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.
On this question we disagree with the referee, who distinguished the "quality of the lawyer's services" from the qualities (i.e., traits or characteristics) of the lawyer. We conclude that this is an artificial distinction which unduly limits the scope of the rule by interpreting "quality of the lawyer's services" in the narrowest sense. From the perspective of a prospective client unfamiliar with the legal system and in need of counsel, a lawyer's character and personality traits are indistinguishable from the quality of the services that the lawyer provides. A courteous lawyer can be expected to be well mannered in court, a hard-working lawyer well prepared, and a "pit bull" lawyer vicious to the opposition. In the attorneys' advertisement, the pit bull image appears in place of an ampersand between the attorneys' names, and the ad includes the use of the words "pit bull" in the attorneys' telephone number in large capital letters. The combined effect of these devices is to lead a reasonable consumer to conclude that the attorneys are advertising themselves as providers of "pit bull"-style representation. We consider this a characterization of the quality of the lawyers' services in violation of rule 4-7.2(b)(3).
We also conclude that the ad violates rule 4-7.2(b)(4), which requires that visual or verbal depictions be "objectively relevant" to the selection of an attorney, and prohibits depictions that are "deceptive, misleading, or manipulative." The comment to this rule explains that it
prohibits visual or verbal descriptions, depictions, or portrayals in any advertisement which create suspense, or contain exaggerations or appeals to the emotions, call for legal services, or create consumer problems through characterization and dialogue ending with the lawyer solving the problem. Illustrations permitted under Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), are informational and not misleading, and are therefore permissible. As an example, a drawing of a fist, to suggest the lawyer's ability to achieve results, would be barred. Examples of permissible illustrations would include a graphic rendering of the scales of justice to indicate that the advertising attorney practices law, a picture of the lawyer, or a map of the office location.
(Emphasis supplied.) The logo of the pit bull wearing a spiked collar and the prominent display of the phone number 1-800-PIT-BULL are more manipulative and misleading than a drawing of a fist. These advertising devices would suggest to many persons not only that the lawyers can achieve results but also that they engage in a combative style of advocacy. The suggestion is inherently deceptive because there is no way to measure whether the attorneys in fact conduct themselves like pit bulls so as to ascertain whether this logo and phone number convey accurate information.
In addition, the image of a pit bull and the on-screen display of the words "PIT-BULL" as part of the firm's phone number are not objectively relevant to the selection of an attorney. The referee found that the qualities of a pit bull as depicted by the logo are loyalty, persistence, tenacity, and aggressiveness. We consider this a charitable...
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...the services the lawyer provides, but also to the qualities (i.e., traits or characteristics) of the lawyer himself. See Fla. Bar v. Pape, 918 So.2d 240, 244 (Fla.2005). In Mason, the Eleventh Circuit considered the language of a similar Rule, former Rule 4–7.2(j), which prohibited “stateme......
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...was certainly not unreasonable given the evidence in support of that finding.”). In The Florida Bar v. Pape and The Florida Bar v. Chandler, 918 So.2d 240, 242 and 245 (Fla.2005) cases, two Florida attorneys were disciplined for using an image of a pit bull in their advertising because it w......
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