In this case we impose discipline on two attorneys for their use of television advertising
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.
BACKGROUND AND PROCEDURAL HISTORY
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:
The referee found that the attorneys did not violate rule 4-7.2(b)(3), relying on the
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) (stating that if the issue presented in a decision is a pure question of law, the decision is subject to de novo review); Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001) (concluding that whether the attorney's admitted actions constitute unethical conduct is a question of law). The facts are not in dispute, and therefore our review is de novo.
A. Violation of Attorney Advertising Rules
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 "a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements using slogans ... fail to meet these standards and diminish public confidence in the legal system." The television commercial at issue here uses both a sensationalistic image and a slogan,
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.
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
(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.
Pit bulls have a reputation for vicious behavior that is borne of experience. According to a study published in the Journal of the American Veterinary Medical Association in 2000, pit bulls caused the greatest number of dog-bite-related fatalities between 1979 and 1998. Jeffery J. Saks, et al., Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998, 217 J. Am. Veterinary Med. Ass'n 836, 837 (2000), available at http://www.cdc.gov/ ncipc/duip/dogbreeds.pdf.
In State v. Peters, 534 So.2d 760 (Fla. 3d DCA 1988), the Third District Court of Appeal upheld a City of North Miami ordinance imposing substantial insurance, registration, and confinement obligations on owners of pit bulls. The City of North Miami ordinance contained findings that pit bulls have a greater propensity to bite humans than all other breeds, are extremely aggressive towards other animals, and have a natural tendency to refuse to terminate an attack once it has begun.
This Court would not condone an advertisement that stated that a lawyer will get results through combative and vicious tactics that will maim, scar, or harm the opposing party, conduct that would violate our Rules of Professional Conduct. See, e.g., R. Regulating Fla. Bar 4-3.4(g)-(h) (prohibiting threats to present criminal or disciplinary charges solely to gain an advantage in a civil matter). Yet this is precisely the type of unethical and unprofessional conduct that is conveyed by the image of a pit bull and the display of the 1-800-PIT-BULL phone number. We construe the prohibitions on advertising statements that characterize the quality of lawyer services and depictions that are false or misleading to prohibit a lawyer from advertising his or her services by suggesting behavior, conduct, or tactics that are contrary to our Rules of Professional Conduct.
Further, we reject the referee's finding that the use of the words "pit bull" in the phone number is merely a mnemonic device to help potential clients remember the attorneys' number. Phrase-based phone numbers are memorable because of the images and associations they evoke. The "1-800-PIT-BULL" phone number sticks in the memory precisely because of the image of the pit bull also featured in the ad, the association of pit bulls with the characteristics discussed herein, and the "go for the jugular" style of advocacy that some persons attribute to lawyers. In short, this is a manipulative and misleading use of what would otherwise be content-neutral information to create a nefarious association.
Indeed, permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice.
B. First Amendment Protection of Lawyer Advertising
We also disagree with the referee's conclusion that the application of rules 4-7.2(b)(3) and 4-7.2(b)(4) to prohibit this advertisement violates the First Amendment. 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.
The seminal lawyer advertising case is Bates v. State Bar of Arizona, 433 U.S. 350, 376, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), which involved the advertising of fees for low cost legal services. In Bates, the Supreme Court held generally that attorney advertising "may not be subjected to blanket suppression," and more specifically that attorneys have the constitutional right to advertise their availability and fees for performing routine services. Id. at 383-84, 97 S.Ct. 2691. The cost of legal services, the Supreme Court concluded, would be "relevant information needed to reach an informed decision." Id. at 374, 97 S.Ct. 2691.
In reaching this conclusion the Supreme Court recognized that "[a]dvertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange." Id. at 376, 97 S.Ct. 2691. "[C]ommercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking." Id. at 364, 97 S.Ct. 2691 (citation omitted).
The Supreme Court emphasized that advertising by lawyers could be regulated and noted that "because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising." Id. at 383, 97 S.Ct. 2691. The Supreme Court specifically declined to address the "peculiar problems associated with advertising claims relating to the quality of legal services," but observed that "[s]uch claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false." Id. at 366, 97 S.Ct. 2691 (emphasis supplied).
After Bates, the Supreme Court considered a Missouri rule that restricted lawyer advertising to newspapers, periodicals, and the yellow pages, and limited the content of these advertisements to ten categories of information (name, address and telephone number, areas of practice, date and place of birth, schools attended, foreign language ability, office hours, fee for an initial consultation, availability of a schedule of fees, credit arrangements, and the
Writing for a unanimous Court, Justice Powell summarized the commercial speech doctrine in the context of advertising for professional services:
Id. at 203, 102 S.Ct. 929. In holding the Missouri restrictions per se invalid as applied to the lawyer, the Supreme Court concluded that the state had no substantial interest in prohibiting a lawyer from identifying the jurisdictions in which he or she was licensed to practice. See id. at 205, 102 S.Ct. 929. The Court noted that this "is factual and highly relevant information." Id. (emphasis supplied). Although the Court found the lawyer's listing in large capital letters that he was a member of the Bar of the Supreme Court of the United States to be "[s]omewhat more troubling" and in "bad taste," this alone could not be prohibited without a finding by the Missouri Supreme Court that "such a statement could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court." Id. at 205, 102 S.Ct. 929. In short, the Supreme Court in R.M.J. was dealing with restrictions on clearly factual and relevant information that had not been found to be misleading or likely to deceive. As in Bates, the Supreme Court concluded that such restrictions violated the First Amendment.
In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 629, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Supreme Court addressed whether a state could discipline a lawyer who ran newspaper advertisements containing nondeceptive illustrations and legal advice. One advertisement published the lawyer's willingness to represent women injured from the use of the Dalkon Shield intrauterine device. See id. at 630, 105 S.Ct. 2265. The parties had stipulated that the advertisement was entirely accurate. See id. at 633-34, 105 S.Ct. 2265.
In holding that the lawyer could not be disciplined on the basis of the content of his advertisement, the Supreme Court observed that the advertisement did not promise results or suggest any special expertise but merely conveyed that the lawyer was representing women in Dalkon Shield litigation and was willing to represent other women with similar claims. See id. at 639-40, 105 S.Ct. 2265. Turning to the lawyer's use of an illustration of the Dalkon Shield, the Court first held that illustrations are entitled to the same First Amendment protection as that afforded to
The most recent United States Supreme Court decision to address restrictions on the content of lawyer advertising involved an attorney who held himself out as certified by the National Board of Trial Advocacy (NBTA). See Peel v. Attorney Registration & Disciplinary Comm'n of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990). The state supreme court had concluded that the claim of NBTA certification was "misleading because it tacitly attests to the qualifications of [petitioner] as a civil trial advocate." Id. at 98, 110 S.Ct. 2281 (plurality opinion) (quoting In re Peel, 126 Ill.2d 397, 128 Ill.Dec. 535, 534 N.E.2d 980, 984 (1989)) (alteration in original). The state court had not addressed "whether NBTA certification constituted reliable, verifiable evidence of petitioner's experience as a civil trial advocate." Id. at 99, 128 Ill.Dec. 535, 534 N.E.2d 980 (emphasis supplied). After applauding the development of state and national certification programs, a plurality of the Supreme Court concluded that the facts as to NBTA certification were "true and verifiable." Id. at 100, 128 Ill.Dec. 535, 534 N.E.2d 980 (plurality opinion). The plurality pointed out the important "distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality." Id. at 101, 128 Ill.Dec. 535, 534 N.E.2d 980 (plurality opinion) (emphasis supplied). A majority of the Court concluded that the letterhead was not actually or inherently misleading, and thus that the attorney could not be prohibited from holding himself out as a civil trial specialist certified by the NBTA. See id. at 106, 128 Ill.Dec. 535, 534 N.E.2d 980 (plurality opinion); id. at 111-12, 128 Ill.Dec. 535, 534 N.E.2d 980 (Marshall, J., concurring in the judgment).
The pit bull logo and "1-800-PIT-BULL" phone number are in marked contrast to the illustration of the Dalkon Shield intrauterine device at issue in Zauderer, which the United States Supreme Court found to be "an accurate representation ... and ha[ve] no features that are likely to deceive, mislead, or confuse the reader." 471 U.S. at 647, 105 S.Ct. 2265. The Dalkon Shield illustration informed the public that the lawyer represented clients in cases involving this device. 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. Consequently, the 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.
Because the referee found that the attorneys were not guilty of violating rules 4-7.2(b)(3) and 4-7.2(b)(4), the referee did not address the issue of discipline. The parties do not address the issue of discipline in their briefs to this Court. However, we have in the past approved public reprimands for attorneys who have been found guilty of violating the advertising rules. See Fla. Bar v. Herrick, 571 So.2d 1303, 1307 (Fla.1990); Fla. Bar v. Budish, 421 So.2d 501, 503 (Fla.1982). We have also required that attorneys attend the Florida Bar Advertising Workshop. See, e.g., Fla. Bar v. Zebersky, 902 So.2d 793 (Fla.2005) (No. SC04-1907) (table report of unpublished order). We conclude that similar discipline is warranted in this case.
We disapprove the referee's finding that the television commercial at issue is constitutionally protected speech that does not violate our attorney advertising rules. We find John Robert Pape and Marc Andrew Chandler guilty of violating rules 4-7.2(b)(3) and 4-7.2(b)(4) of the Rules Regulating the Florida Bar. We order that each attorney receive a public reprimand, which shall be administered by the Board of Governors of The Florida Bar upon proper notice to appear. We also direct Pape and Chandler to attend and complete the Florida Bar Advertising Workshop within six months of the date of this opinion.
It is so ordered.
WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
Id. at 764.