The Florida Bar v. Pape and The Florida Bar v. Chandler, ___ So.2d ___, 2005 WL 3072013 (Fla. 2005)

Summary
Two Florida lawyers aired a television advertisement that used the logo of a pit bull wearing a spiked collar in place of an ampersand between the attorneys’ names and prominently displayed a telephone number of 1-800-PIT-BULL. 

The Florida Bar initiated disciplinary proceedings against the attorneys, charging them with violating two of the Florida Rules of Professional Conduct:

Rule 4-7.2(b)(3), which prohibits a lawyer from making statements in advertisements describing or characterizing the quality of the lawyer’s services; and

Rule 4-7.2(b)(4), which requires that 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.

The referee who presided over the hearing determined that the advertisements did not violate either of the rules and was protected as commercial speech by the First Amendment.

The Florida Supreme Court reversed and held that the advertisement violated Rule 4-7.2(b)(3) because the simultaneous display of the logo and the words “pit bull” in the telephone number conveyed certain characteristics of the attorneys and the quality of the services they purported to provide, specifically that the attorneys were advertising themselves as providers of pit-bull-style representation.

The court also held that the advertisement violated Rule 4-7.2(b)(4) because it was manipulative and misleading, suggesting to viewers that the attorneys could achieve results and that they engage in a combative style of advocacy.  The court found that the advertisement was inherently deceptive because there is no way to measure whether the attorneys conduct themselves like pit bulls and found that the logo and words “pit bull” were not objectively relevant to the selection of an attorney. 

Although the hearing referee found that pit bull dogs possessed qualities such as loyal, persistent, tenacious and aggressive, the Supreme Court noted that it possessed darker qualities such as malevolence, viciousness and unpredictability. The court stated that a lawyer who would try to obtain results through combative and vicious tactics that would maim, scar or harm the opposing party, which is what the pit bull advertisement conveyed, would violate other Rules of Professional Conduct, and that the advertising rules prohibit a lawyer from advertising that suggested behavior, conduct or tactics which are contrary to the Rules.

The court concluded that to permit this type of advertising would make a mockery of the court’s dedication to promoting public trust and confidence in the system of justice.

The court also rejected the attorneys’ contention that the advertisement was protected by the First Amendment, finding that lawyer advertising only enjoys First Amendment protection to the extent that it provides accurate factual information that can be objectively verified. Because the logo and phone number did not convey relevant information about the attorneys’ practice, it falls outside the protection of the First Amendment.

Significance
This decision is significant in that it further clarifies what kind of advertising would violate the Florida Rules of Professional Conduct.  Previously, in The Florida Bar v. Lange, 711 So.2d 518 (Fla., 1998), the court had held that using the phrase “When the Best is Simply Essential” was self-laudatory and purported to describe the quality of the lawyer’s services, and violated the predecessor to Rule 4-7.2(b)(3). Now Florida lawyers (and lawyers in other jurisdictions that have similar rules) have guidance on the kinds of depictions and words that characterize the quality of the lawyer’s services; are not objectively relevant to the selection of an attorney; and are deceptive, misleading or manipulative. The opinion may well serve as a model in other states to help divide the arguably creative from the deceptive.