Topic: Government & Politics

Pit-Bulls, Lawyers and Ethics
(11/21/2005)

Of all the states, Florida alone wages a futile war against lawyer advertising. While the rest of the country, for better or worse, has more or less resigned itself to lawyers selling their services on television and elsewhere by using the same advertising techniques that hawk hamburgers, plumbing services or Viagra, Florida still maintains that lawyers should hew to a higher standard. Among other prohibitions on advertising, the Florida Bar's Rules of Professional Conduct 4-7.2(b) (4) requires that illustrations in lawyers ads be "objectively relevant to the selection of an attorney" and not "deceptive, misleading, or manipulative."

How puzzling. Advertising is routinely manipulative: think of those heart-warming General Electric and Kodak commercials. Lawyers are also manipulative; their job often entails advocacy and persuasion. Does a good trial lawyer manipulate a jury's emotions? Naturally. But although lawyering is manipulative and advertising is manipulative, lawyer advertising cannot be manipulative without violating Florida Bar rules. The Sunshine State clearly yearns for those gentle days when lawyer advertising was limited by tradition and decorum to a name, address and phone number. That system, however, was fair neither to lawyers nor consumers. And it is long gone.

The most recent example of Florida's quixotic battle against lawyer advertising is the action of the Florida Supreme Court, which pulled the television commercials of two lawyers, reprimanded them and sentenced them to attend the much-dreaded Florida advertising workshop. Their transgression? Their spots featured a picture of a pit-bull, with the phone number 1-800-PIT-BULL.

"Unethical!" said the court. Finding the lawyers guilty of violating Florida Rule of Professional Conduct 4-7.2(b) (3) (prohibiting statements describing or characterizing the quality of the lawyer's services in advertisements"), the Court reversed the ruling of a referee that the ads were acceptable. The pit-bull ads imply that the lawyers will "get results through combative and vicious tactics that will maim, scar or harm the opposing party," wrote Chief Justice Barbara Pariente. She rejected the attorneys' free speech arguments, citing U.S. Supreme Court rulings that allow states to prohibit lawyer advertising when it is not factual or contains information that cannot be verified. "The 'pit bull' commercial produced by the attorneys in this case contains no indication that they specialize in either dog bite cases generally or in litigation arising from attacks by pit bulls specifically," Pariente wrote, stating the obvious but betraying a lack of sensitivity to self-parody. "Instead, the image and words 'pit bull' are intended to convey an image about the nature of the lawyers' litigation tactics."

Lighten up, Your Honor! Lawyers are required to be loyal to their clients, and pit-bulls are very loyal. Lawyers are also required by the very same ethics rules that restrict advertising methods to be vigorous advocates for their clients, and adversaries of their client's legal opponents. Combative? Successful lawyers have to be combative. But will one single person who sees the pit-bull imagery commercial assume that any lawyer is going to "maim or scar" anybody? Until Hannibal Lector hangs out a shingle, I think not. Most people of average intelligence know what qualities a lawyer is advertising if he compares himself to a pit-bull, and they are qualities that are basic to the practice of law. It is safe to assume, for example, that such a lawyer is not boasting that he relieves himself on fire hydrants.

The Florida Bar and Supreme Court are evidently worried about the message the pit-bull logo and number convey about lawyers generally. The Court concluded they "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice."  The Scoreboard hates to be the bearer of bad news, but someone needs to tell the Court that lawyers are routinely and sometimes accurately compared to a lot worse things than pit-bulls. A pit-bull is definitely an upgrade. A pit-bull protects and stands by your side, like a lawyer is supposed to do. A pit-bull gives good service without demanding much in return. A pit-bull never pads his hours or misses a deadline.

There are bad pit-bulls out there, and they give the breed a bad reputation just as a minority of bad lawyers gives their breed a bad reputation. Is there a higher percentage of bad lawyers, or bad pit-bulls? Here's a possible clue: the initial complaint about the lawyers' commercials came from a pit-bull breeder.

But with the possible exception of slander against the dogs, the Florida lawyers did nothing unethical. The Florida Supreme Court's idea of proper advertising is quaint and touching, but as applied here, it is willfully lunk-headed. Pit-bulls and lawyers are a good match, and the Florida Supreme Court should admit it and leave both alone until they actually bite someone.

The case is The Florida Bar v. Pape, ___ So.2d ___ (Fla., No. SC04-40, 11/17/2005), and can currently be found through the excellent website, www.sunEthics.com.

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