f/k/a archives . . . real opinions & real haiku

The St. Petersburg Times has a very good editorial, in response to the

Florida Supreme Court’s decision banning a law firm’s Pit Bull logo, in

Florida Bar v. John Pape and Marc Chandler, (see our prior post). 

Here are some excerpts from “Snarf. Growl. Meow?,” (Nov. 20, 2005):

After very long thought and utterly serious deliberation, the Florida

Supreme Court has unanimously pronounced pit bulls to be very

bad dogs. Much too bad, you see, to symbolize a lawyer’s services.

 

We are not making this up, but we wish we were.

 

The reason why the court scoured law books and the Internet for 

precedents, having none of its own, had nothing to do with injury to

a person or another animal. The harm in question was only to the

dignity of the legal profession, which obviously takes itself much too

seriously.

 

The real harm, however, was to the First Amendment . . .

 

. . . But the court is kidding only itself if it thinks that censoring the

profession’s advertising will make lawyers look like pussycats to the

people who have felt their claws.

In case the Florida Supreme Court needs a new symbol/logo for its

homepage, the f/k/a Gang, after at least as much deliberation as the

Court over Pit Bulls, suggests this fellow:

 

                                                                            Or, perhaps, this version:

 

Just watch your step in their ethics pasture.

 

lightning flash–
only the dog’s face
is innocent
                        Issa/Lanoue

 

 

 

 

town dump

two magpies jabber

on an old brass bed

 

 

 

 

in the old elm’s shade

the black cat opens one eye

sunspot on its tail

 

 

 

 

as I wait

for the phone to ring    the beagle

worries a bone

 

 

 

putting holes

in my argument

the woodpecker

 

George Swede from Almost Unseen (Brooks Books, 2000) 

 

update (Nov. 23, 2005): see ” pit bull ” as compliment .

 

“pitbullLogo”

 

 

 

winter coming on–

a man hitchhiking south

in his wheelchair

 

 

 

 

 

rural interstate–

all the other cars

exit together

 

 

 

 

 

 

rooster crowing

two old soldiers

at the bar

 

 

 

 

Lee Gurga 

“winter” & “rural” – Fresh Scent (Brooks Books, 1998) 

“rooster crowing” – Modern Haiku (Autumn 2005)

 

 

 

• 
  
  by dagosan                                         

 

full morning moon —

the working girl’s

gauzy blouse

 

 

 

 

Thanksgiving rush —

not as late

as that flock of geese

 

 

 [Nov. 19, 2005]

 

                      

  potluck

After a long drive to visit my parents (early Thanksgiving),

I sure need a mug of coffee.  Thank goodness the good folk at

Harvard say its okay (Harvard Gazette, “Coffee gets cleared of 

blood pressure risk – but not caffeinated colas,” Nov. 10, 2005):

Relax ladies and, possibly, gentlemen. Have that

second cup of coffee. The largest study to date

concludes that the caffeine won’t raise your risk

of high blood pressure. However, too much soda

pop, sugared or diet, might.  

 

Women who drink more than three cups of coffee a

day are less likely to develop high blood pressure

than those who drink four or more cans of caffeinated

soda a day.

 

 While we fight the Dignity Police of the legal profession,

George Wallace and John Gardner taken on “immoral fiction.”

                                                                                                                                                 

 

If you’ve been listening to radio stations in New York State, this month,

you might have heard this little “public eduation” spot, part of a series

modestly called “Beacon of Justice” (via Will Hornsby):

“This is Vince Buzard, president of the New York State Bar

Association. Do you feel bombarded by lawyer advertising?

Here’s some advice. If you need a lawyer, ask another lawyer

for a recommendation. Or ask friends, or business associates,

or call the State Bar Association for a referral. Attorneys have

a constitutional right to advertise, but billboards and the Yellow

Pages don’t necessarily provide the information you need. A

message from the New York State Bar Association in cooperation

with the New York State Broadcasters Association.”

That’s right, the NYSBA would like consumers to ignore lawyer advertising.  

Indeed, their 108th President, A. Vincent Buzard, has proudly confessed  

he wants to limit lawyer advertising “to the fullest extent permitted, within

the limitations of the First Amendment.”  “It’s bothered me for years,” Buzard

recently said of attorney ads. “This is my year to do something, this is my

chance.” (Buffalo News, “Focus: Attorney Advertising,” Nov. 12, 2005)  So,

Buzard worked up this nifty ad and appointed a Task Force on Attorney Ad-

vertising, which issued a 130-page Report on Nov. 5, 2005. 

 

Let’s take a quick look at each initiative (including the Report’s treatment of

websites and weblogs). 

 

The Anti-Ad Public Relations Campaign Ad, Buzard’s advice if you need a lawyer

is: “ask another lawyer for a recommendation. Or ask friends, or business associ-

ates, or call the State Bar Association for a referral.”  None of these alternatives

seems particularly helpful to the “average” consumer to whom typical lawyer adver-

tising is targeted.  Very few middle-. modest- or lower-income Americans have a

“family lawyer” to turn to for advice.  (By some estimates, 80% of the legal needs

of the poor and working poor are unmet, and 150 million Americans have no viable

access to the court system.  Last year, the NY Office of Court Administration cited

a study by NYSBA that estimates there are annually “a total of approximately 2.5

million legal problems for which no lawyer is available” to poor households in New

York.) 

 

If you do happen to know a lawyer from a house closing, divorce, or criminal matter,

just how happy is he or she going to be when you call seeking a recommendation,

and how objective will that recommendation be?   Yes, you could ask your friends,

but how knowledgeable will they be — and how do you judge the value of their

advice? 

mid-argument

the senior partner

has a senior minute

 

   dagosan [Nov. 9, 2005]

 

Buzard’s last suggestion  — calling the State Bar Association for a referral — is

both bogus and self-serving.  We’ve discussed the weaknesses of the lawyer referral

service model at length here, concluding, “From the consumer’s point of view there

are several major problems with the traditional LRS model, the cumulative effect

of which is to make the service only slightly better in most instances than using

the Lawyers by Practice Area section of the Yellow Pages:”

 

The typical consumer in need of a lawyer needs all the sources of information

he or she can get to make a good choice.  Advertising is one way to discover

who is looking for clients with particular problems.  For more ideas on how to

find and choose a lawyer, see Shopping for a Lawyer, from the legal reform

group HALT.

  See PR or Parody for our previous discussion

of NYSBA’s public relations campaigns.

 

The Report of the Task Force on Advertising.  It was no surprise for me that

Buzard’s Task Force has written a Report adopting in full the Advertising Guidelines 

of the Monroe County [NY] Bar Association (press release, May 9, 2005), which

were shepherded into being by Buzard himself.   Our major concerns over the MCBA

Guidelines are discussed in this prior post, which states that “There is simply too

much leeway here for meddlesome interference and deterrence, with little more at

stake than the profession’s Image.”

 

According to the MCBA Press Release last May:

“The MCBA had adopted these guidelines to promote knowledge and
respect for the New York Lawyers Code of Professional Responsibility,
and to encourage responsible and informative advertising by attorneys. 
In essence, the MCBA guidelines state that lawyer advertising should be
true, accurate, clear, fair, relevant, rational and jurisdictionally proper.”

Their goals sound harmless, but the thrust of the Guidelines is clearly to

put a chill on tv ads deemed inappropriate by the Dignity Police.  For

example, here are three important Guidelines, in full:

Fair: Advertising that recreates, dramatizes, or simulates situations

or persons should fairly represent the underlying facts and properly

disclose that they have been staged.

 

Relevant: All information should be relevant to the thoughtful 

selection of counsel, and devices, such as puffery, that are likely

to hinder this process should be minimized.

 

Rational: Pictures and other stylistic elements should be used

to reinforce rational considerations, and should not unduly frighten,

inflame, or otherwise manipulate viewers into ignoring rational con-

siderations. Lawyer advertising should not be likely to shock or

offend a substantial segment of the community or to foster disrespect

for the law, the legal profession, or the judicial system.

My reaction as a former antitrust lawyer is that MCBA is running the risk of violating 

the antitrust laws with subjective and overly-restrictive guidelines — especially by linking

them to a compliance-and-monitoring system. The Guideline Committee will accept 

requests for advisory opinions and complaints about violations (which will surely come

from competitors, from the bar’s Dignity Police, and maybe even from ‘tort reformers’);

the committee will also ‘suggest’ modifications to the ads and recommend that the

Association’s Board make public the refusal by a lawyer to modify ads deemed

inappropriate.”

“journalist F”  Ironically, the MCBA Advertising Review Committee had

to shut down shortly after it opened for business, because it was

interfering with (and angering) the State’s Grievance Commit-

tee, and could not work out a compromise.

In addition to adopting the MCBA Guidelines, the Task Force now proposes that all

advertising be filed with a central authority at the time it is published, retained for at

least four years, and subjected to random audit and investigation.  Perhaps taking

a cue from real estate trade associations (our prior post), it hopes to insulate the

currently recommended advertising review committee from antitrust assault (and to

get around the Grievance Committee) by having a governmental body appoint and/or 

oversee it. 

 

  Like yesterday‘s mistaken decision in Florida Bar Assn v. John Pape and Marc

Chandler, the Task Force proposes major restrictions on advertising in the name of

consumer protection and the avoidance of deception, with absolutely no evidence of

consumer harm.  The Report states that “although a very small minority of the ads

could be categorized as false or deceptive on their face,” about a third of the 119 ads

reviewed by Task Force members were found to be deceptive.  Given the inability to

verify their findings, I am quite dubious of the significance of this claim.  One reason

is the admission in the Report that the “most widespread impropriety” was the failure

to give either the firm’s name, address, or telephone numbers in the ads.  In addition,

the Task Force clearly includes a failure to inform the audience that an ad is “staged”

or uses actors in the deceptive category.  Yet annother reason is the acknowledgement

in the Report that numerous members of the Task Force wanted to remove the materiality

requirement for a finding of deception.

 

Here are some of the other findings and recommendations in 

the Report, which chose not to define “advertising”:

– the lawyer or law firm’s name, actual street address, plus OCA registration

address (if different), and telephone numbers are required in every ad (and must

be on home page of a website)

 

– websites and weblogs by lawyers are advertising

 

– the sponsor of a website or weblog must file any material change in the  

website, and retain the information for four years (electronic methods of retention

are allowed)

 

– the rule that a lawyer may not practice under a trade name should be continued

 

– certain website URLs are unprofessional and distasteful (e.g., “Vioxxattorney.com“),

and although they can’t be regulated for taste, they can be regulated as a trade name

that should be prevented.  Mandatory filing and auditing are needed to allow regulation

of such URL advertising.

 

– placement in Google or Yahoo! results that are not random (e.g., due to content-gen-

erated ads or payment for placement) may be analogous to “paying a chaser;”  there-

fore, random review of internet ads are needed to police such activity

 

– fee information in any ad must be honored for specified periods, and for at least 30

days

 

– a firm may not say that it has a specialty, specializes in, or has specialists in a

particular field (unless certified by an ABA-approved body);

 

 

– attorneys should be required to certify on their biennial registration that they have 

complied with advertising rules, under penalty of perjury

Despite all of its protestations about not regulating taste or content, the Report of the

NYSBA Task Force on Advertising is clearly, in its parts and its entirety, more about promoting

“professional dignity” and propriety — by stifling advertising — than about legitimate, pro-compe-

titive, consumer protection.  Comments to Rules 7.1 and  7.2 of the ABA’s Model Rules are far

more in accord with the spirit of the First Amendment and consumer sovereignty.  They are

very adequate guidelines — for both lawyers and their regulators — and are well worth repeating

here:

Comment to Rule 7.1 Communications Concerning a Lawyer’s Services

 

[2] Truthful statements that are misleading are also prohibited by this Rule. A

truthful statement is misleading if it omits a fact necessary to make the lawyer’s

communication considered as a whole not materially misleading. A truthful state-

ment is also misleading if there is a substantial likelihood that it will lead a reas-

onable person to formulate a specific conclusion about the lawyer or the lawyer’s

services for which there is no reasonable factual foundation.

 

[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of

clients or former clients may be misleading if presented so as to lead a reasonable

person to form an unjustified expectation that the same results could be obtained

for other clients in similar matters without reference to the specific factual and legal

circumstances of each client’s case. Similarly, an unsubstantiated comparison of

the lawyer’s services or fees with the services or fees of other lawyers may be mis-

leading if presented with such specificity as would lead a reasonable person to

conclude that the comparison can be substantiated. The inclusion of an appropriate

disclaimer or qualifying language may preclude a finding that a statement is likely to

create unjustified expectations or otherwise mislead a prospective client.

 

 

Comment to Rule 7.2 Advertising

 

[1] To assist the public in obtaining legal services, lawyers should be allowed

to make known their services not only through reputation but also through organized

information campaigns in the form of advertising. Advertising involves an active quest

for clients, contrary to the tradition that a lawyer should not seek clientele. However,

the public’s need to know about legal services can be fulfilled in part through advertising.

This need is particularly acute in the case of persons of moderate means who have not

made extensive use of legal services. The interest in expanding public information about

legal services ought to prevail over considerations of tradition. Nevertheless, advertising

by lawyers entails the risk of practices that are misleading or overreaching.  . . .

 

casual Friday

the senior partner

unbuttons his vest

 

    dagosan [Nov. 18, 2005]

And, especially worth consideration (by Vince Buzard and all the

Dignity Police):

 

[3] Questions of effectiveness and taste in advertising are matters of speculation and

subjective judgment. Some jurisdictions have had extensive prohibitions against television

advertising, against advertising going beyond specified facts about a lawyer, or against

“undignified” advertising. Television is now one of the most powerful media for getting

information to the public, particularly persons of low and moderate income; prohibiting

television advertising, therefore, would impede the flow of information about legal services

to many sectors of the public. Limiting the information that may be advertised has a similar

effect and assumes that the bar can accurately forecast the kind of information that the

public would regard as relevant. Similarly, electronic media, such as the Internet, can be

an important source of information about legal services, and lawful communication by

electronic mail is permitted by this Rule.

 

See our post from September 26, 2005, discussing other recent regulations that have treated legal

consumers like simpletons, but which actually belie the legal profession’s basic dislike of lawyer 

advertising, competition, and affronts to its bloated feelings of self-importance.  

 

As stated in the prior post, An FTC letter in September 2002 to the Alabama Supreme Court

makes some important points (see the Press Release):

“[I]t is best for consumers if concerns about misleading advertising 

are addressed by adopting restrictions on advertising that are tailored

to prevent unfair or deceptive acts or practices. . . . [I]mposing overly

broad restrictions that prevent the communication of truthful and nond-

eceptive information is likely to inhibit competition and to frustrate

informed consumer choice.” As the Commission staff noted in a 1994

comment to the American Bar Association’s Commission on Advertising,

“research has indicated that overly broad restrictions on truthful advertising

may adversely affect prices paid by consumers, especially for routine

legal services.”

As to the “dignity of the profession” concern, the FTC’s Alabama Letter concluded:

“[B]road rules to enforce criteria of ‘dignity’ may prevent the communication of useful,

nondeceptive information and thus inhibit competition and consumer choice. Strict

rules to enforce ‘dignity’ may not give consumers enough credit, for consumers

apparently respond more positively to advertising that would be considered ‘dignified.’

And consumers appear to be less offended by certain supposedly undignified methods

than professional themselves are.”

 

“tinyredcheck” Consumers do not need more paternalism and phony professionalism.  They need more

competition, choices and information.   Lawyers and judges who truly want to put the interests

of clients first, must have more faith in the benefits of the First Amendment and of competition,

and less reliance on false notions of dignity and propriety. 

 

update (Nov. 21, 2005): On a lighter note, someone Googled

dress guidelines for attorney professional photographs> and

this post was the #2 result — as if we need to give Mr. Buzard

and the Image Protectors any new ideas. (note to myself: update

the f/k/a Inadvertent Searchee page)

 

afterthought: See Missouri newsflash: legal consumers are really stupid 

(Sept. 26, 2005), for more on this topic, including links to materials on other

states that treat legal consumers as cretins.  Also, see our post on the Nevada

Bar’s campaign against the term “The Heavy Hitter” (March 3, 2006).

 

 

 

typo?

her lawyer listed

under “Martial Law”

 

  dagosan [Nov. 19, 2005]

 

“NoSolitS”

 

city lights —

the brightest are all

selling something

 

 

 

dawn

before there is any

tune in my head

 

 

 

snowing hard

no road sign

to obey

 

 

 

 

 

autumn rain

settled

in my ways

 

 

John Stevenson

“city lights” & “dawn” – Upstate Dim Sum (2005/1)

“snowing hard” & “autumn rain” – Upstate Dim Sum (2005/II)

                                                                                                            

While I’m busy fretting over the proliferation of Dignity Police

in the legal profession, you can take a break with Jim Kacian:

 

 

 

up into the sky

the airplane rides

my belief

 

 

 

 

 

 

  afternoon moon

the blue of the sky

  right through it

 

 

 

 

 

 

 

winter sunshine

the glint of windshields

at the mall

 

 

Jim Kacian

“up into the sky” – Roadrunner V: 4 (Nov. 2005)

“afternoon moon” – Presents of Mind (1996)

“winter sunshine” – Mainichi News (Nov. 2005)

 

   – don’t forget jim kacian’s haiku primer –

 

 

In light of yesterday’s decision in Florida banning Pit Bull    

logos in lawyer ads, Evan Schaeffer is worried about finding just the

right, non-deceptive animal metaphor for his p/i law firm.  Right now,

he’s thinking “pack mule” might pass muster.

 

– below are haiku and senryu written by “dagosan”, this weblog’s Editor, David A. Giacalone. most have been on the Home Page, some are outtakes and rewrites. each is a work in progress. i hope they show improvement over time and encourage others to try writing haiku –

 – click here for dagosan’s archive index –

 

 

 

 

men washing dishes –

an early alarm

ends her Thanksgiving dream

 

               [Nov. 24, 2005]

 

 

 

 

 

 

first snow —

an entire city

learning to drive

 

 

 

 

 

 

 

 

Thanksgiving snow storm –

a seatbelt protects each 

steaming pie

 

 

[Nov. 23, 2005]

 

 

 

 

 

 

 

 

a wintry mix

at the bedroom window

big wet ones

 

 

[Nov. 22, 2005]    

 

 

 

 

 

 

 

 

 

 

 

home for Thanksgiving —

in my old bed

in the guest room

 

[Nov. 21, 2005]

 

 

 

 

 

 

smells like Thanksgiving —

two dads smoke cigars

behind the garage

 

 

            [Nov. 20, 2005]

 

 

 

 

 

 

full morning moon —

the working girl’s

gauzy blouse

 

 

 

 

 

 

 

Thanksgiving rush —

not as late

as that flock of geese

 

 

 

 

 

 

 

 

typo?

her lawyer listed

under “Martial Law”

 

 

 

 [Nov. 19, 2005]

 

 

 

 

 

 

 

 

 

 

casual Friday

the senior partner

unbuttons his vest

 

    [Nov. 18, 2005]

 

 

 

 

 

   

Indian Summer —

a squirrel tips over 

the bag of rock salt

[Nov. 16, 2005]

 

 

 

 

 

she’ll never

own a cell phone!

she borrows mine

 

 

       [Nov. 15, 2005]

 

 

 

 

 

 

gone a week —

only the librarian

says “i missed you”

 

   [Nov. 15, 2005]

 

 

 

 

 

 

 

 

 

heading home —  

one hawk

floats over the Beltway

 

 

 

 

 

 

 

 

 

 

 

entering New York:

another autumn hill

turns my head

 

 

 

 

 

 

 

 

 

 

 

from daylight to dark —

a full moon

out my windshield

 

 

 

 

 

 

 

 

 

 

gone a week —

quick peek to see

the river’s still there

 

 

 

 

 

 

 

 

 

 

unloading the car —

the moon

followed me home

 

 

 [Nov. 14, 2005]

 

 

 

 

 

 

 

 

 

a lovely river

but not

my river

 

 

[Nov. 12, 2005]

 

 

 

 

 

 

 

 

 

 

the elm died

and the tulip tree grew —

between visits

 

 

 

              [Nov. 11, 2005]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“you look so good” 

on their counter, too,

Metamucil

 

 

 

 

 

 

 

 

nearly-full moon

the walk to the market 

got a lot steeper

 

 

[Nov. 9, 2005]

 

 

 

 

 

 

 

 

mid-argument

the senior partner

has a senior minute

 

 

 

 

 

 

 

 

mid-argument –

opposing counsel crosses

her legs

 

[Nov. 9, 2005]

 

 

 

 

 

 

 

 

 

autumn highway —

distracted by

past-peak beauty

 

 

 

 

 

 

 

back in town —

three wrong turns

in a row

 

[Nov. 8, 2005]

 

 

 

 

 

 

 

 

 

mapping

a once-familiar route —

they’ve never seen my baldspot 

                  [Nov. 7, 2005]  

 

 

 

 

 

 

 

 

Guy Fawkes Night —

treacle better taste better

than it sounds

 

      [Nov. 6, 2005]

 

 

 

 

 

 

 

same moon

same clock tower –

“wow”

 

                     [Nov. 5, 2005]

 

 

 

 

 

bad news

from the doctor —

voices through the wall

 

 

 

 

 

 

 

 

 

 

 

Day of the Dead —

the anorexic

looks envious

[Nov. 4, 2005]

 

 

 

 

autumn wedding

sweeping up brown and yellow

rice

 

[Nov. 3, 2005]

special delivery –

a smile from

the pregnant mailman

 

 

                             [Nov. 2, 2005]

 

 

 

 

just enough:

one wheelbarrow

two sisters, three pumpkins

 

 

 

 

 

 

 

 

 

November 1st —

All Sales Day

in the candy aisle

 

 

 

 

 

 

under her sheet –

the sleepy ghost

hides a Snickers bar

 

 

    [Nov. 1, 2005]

 

 

 

25th anniversary . . .

  she sits on the suitcase

  to zip it shut

 

 

 

 

 

mountain butterfly

  from her boulder

  to mine

 

 

 

 

 

 

dawn rain

dripping off autumn leaves

her yawn     my yawn

 

randy brooks 

“mountain butterfly” – Modern Haiku XXXI:2; glimpse of red: rma 2000 

“25th anniversary” – RAW NerZ XII:3; pegging the wind: rma 2002

“dawn rain” – School’s Out (Press Here, 1999) 

 

 

• 
  
  from dagosan:  

waving from the river bank

waving back

cattails

 

               [Nov. 13, 2004]

 

“prof grace”  Are you risk-seeking tonight? At RiskProf, you will find a

serious  piece  by Ty Leverty explaining why insurance prices are going up

post-Katrina, and a light-hearted post by Martin Grace about

dating services and the regulation thereof.   Steve Bainbridge

certainly does not have a monopoly on things eclectic (nor

Catholic) on the lawprof web.

 

  At Houston’s Clear Thinkers, Tom Kirkendall rightly

decries the Texas system for selecting judges — elections — as

utterly unsupportable. (via Overlawyered.com).   Tom supports

an appointment process similar to that used for federal judges

(perhaps with a limited term).  He notes:

“Although a growing number of Texans agree that elections

are not the best way to choose judges, the tendency in Texas

politics is for the party in control of the statehouse to support

the current system because most of the elected judges are from

that party. Inasmuch as the Republicans are now solidly in

control of Texas state government, the GOP state leaders are in

no hurry to change even a flawed system so long as it produces

judges mainly from their party”  .  . . .

 

“Thus, this is one of those issues where — regardless of your

political affiliation — the right answer is clear. Only a politician

who is more interested in maintaining power than in improving

the administration of justice would support the current flawed

system.”

As I’ve pointed out previously, we have a similarly lousy system

here in New York.  The chance for reform might be even worse: each

major party is solidly in control of one house of the legislature.  Parties

often cross-nominate each other’s candidate, who is chosen by the

relevant county party chairman.  Here in Schenectady County, we have

had party chairmen choose themselves.  Nice?                                                                                                     

The Florida Supreme Court decided today that use of a 1-800-PIT BULLphone number and of a logo depicting the head of a pit bull violates the States’s Rules of Professional Conduct for lawyers. See Florida Bar v.John Pape and Marc Chandler, Fla. Sup. Ct., Case Nos: SC04-40/SC04- 41. Nov. 17, 2005. (our prior posts here, here and there) (see AP and Reuters, Nov. 17, 2005)

The Court begins:

“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.”

For your information, this is a smaller, b&w version of the logo in question:

Pape & Chandler is a two-man personal injury law firm that specializes in
motorcyclist injuries. In September 2004, the referee/judge hearing the Florida
Bar’s case against Pape & Chandler, ruled that neither the 800-PIT-BULL telephone
number, nor the firm’s pit bull logo, violated the ethical Rules of the Florida Bar,
which were found to be unconstitutional as applied in this case. The FBA was
represented by Tallahassee lawyer Barry Richard. P&C appeared pro se in all
of the proceedings.

As we stated in September 2004: Your Editor is left asking the same
question he had 30 years ago in law school: When will the profession
see that it will earn the respect of the public through the personal integrity
of lawyers and the provision of quality services for reasonable fees — not
through some phony notion of “dignity” or by treating the public like children?
(see Indiana High Court Huffs and Puffs Over P/I Ads)

in full color here . . .

Here are excerpts from the Florida Court’s opinion, written by Chief Justice
Barbara Pariente:

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.

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 aggres-
siveness. We consider this a charitable set of associations that ignores the darker side of the qualities
often also associated with pit bulls: malevolence, viciousness, and unpredictability. Further, although
some may associate pit bulls with loyalty to their owners, the manner in which the pit bull is depicted
in the attorneys’ ad in this case certainly does not emphasize this association. The dog, which is
wearing a spiked collar, directly faces the viewer and is shown alone, with no indication that it is fulfilling
its traditional role as “man’s best friend.

lightning flash–
only the dog’s face
is innocent

……………………………..  Kobayashi Issa

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.

Indeed, permitting this type of advertisement would make a mockery of our dedication to promoting public
trust and confidence in our system of justice. Prohibiting advertisements such as the one in this case is one
step we can take to maintain the dignity of lawyers, as well as the integrity of, and public confidence in, the
legal system. Were we to approve the referee’s finding, images of sharks, wolves, crocodiles, and piranhas
could follow. For the good of the legal profession and the justice system, and consistent with our Rules of
Professional Conduct, this type of non-factual advertising cannot be permitted. We therefore conclude that the
1-800-PIT-BULL ad aired by the attorneys violates rules 4-7.2(b)(3) and 4-7.2(b)(4).

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 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. 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.”

Or, put succinctly: “Da mean dog demeans da profession (and confuses all dose consumers).”

Are you a lot prouder of your profession now? Do you feel more dignified and self-important? Is the public better protected?

update 5 PM: Tim Chinaris at SunEthics has a good summary of the opinion, and notes: “Significantly, in view of the emphasis placed on empirical support for a Bar advertising restriction in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), the Court did not address the portion of the referee’s order that noted that the logo and phone number were not misleading, deceptive, or improperly manipulative, and that the Bar “has made no record to the contrary, as to surveys or studies of the public” (emphasis in original).

 

update (Nov. 20, 2005): words and a logo for the Florida Supreme Court, which excerpts an excellent editorial from The St. Petersburg Times “Snarf. Growl. Meow?,” (Nov. 20, 2005) and suggests a logo for the Florida high court:

 

not a pit bull, but a lot of

update (Nov. 22, 2005) help choose a symbol for the Florida Supreme Court

update (Nov. 23, 2005): ” pit bull ” as compliment .

 

update (Nov. 21, 2005) At Legal Ethics Forum, Prof. McGowan has an astute reply to

the Florida Supreme Court,making many of the points we’ve made here (more eloguently

and professorially, of course), in “Another Ridiculous Anti-Advertising Case from Florida”

(Nov. 20, 2005). Likewise, Carolyn Elefant makes some pointedly apt remarks in her “An

Ethics Decision for the Dogs, at MyShingle (Nov. 21, 2005). Carolyn reminded me that the

Georgetown University mascot Jack the Bulldog might be inappropriate for lawyers to display.

It’s a good thing I’m in retired status, because I wore my GU sweatsuit, with Jack’s tooth-

bearing head over the weekend.

 

 

Here’s a portion of the Pape & Chandler reaction to the decision, from

their website:

“On November 17, 2005 the Florida Supreme Court rendered their decision in
the case of The Florida Bar v. Pape & Chandler. We were disappointed not only
by the result, but also by the Florida Supreme Court’s decision to ignore the law
regarding the scope of their review in this case, the Florida Supreme Court’s
decision to perform its own fact-finding in the case (to make up for the lack of
facts presented by the Florida Bar at the September 14, 2004 trial of the case),
and the degree of judicial activism demonstrated by the Florida Supreme Court.
We continue to believe that neither our telephone number nor our logo contravene
the Rules Regulating the Florida Bar, and are convinced that the November 17,
2005 decision of the Florida Supreme Court merely reflects the fact that the
officers of the Florida Bar (an arm of the Florida Supreme Court) just do not like
the telephone number or the logo. We, once again, invite you to read Judge Herring’s
Amended Final Order, the briefs of the parties to the case, and the opinion of the
Florida Supreme Court to form your own opinion as to the propriety of the Florida
Supreme Court’s opinion.”

update (Nov. 27, 2005): Salon‘s Robert Crook analyzes FBA v. Pape & Chandler

in his inimitable manner. Crook notes, for instance:

“I mean, you could just as easily — no, much more easily — say that the U.S. Supreme Court’s late-2000 Bush v. Gore decision “demean[ed] all lawyers and thereby harm[ed] both the legal profession and the public’s trust and confidence in our system of justice.”

 

“But nooooooooooooo, it’s things like mascots that are the black eye on the legal “profession,” so let’s go after shit like that.

Final – sad – Update: See our post reporting that the U.S. Supreme court rejects PIT-BULL appeal (March 27, 2006)

the first snowfall
doesn’t hide it…
dog poop

mother dog
blocks with her butt…
snowball

 

 

runaway kite!

the dog also eyes it

restlesslly

 

 

by Kobayashi Issa

translated by David G. Lanoue

The Bar Council of Punjab and Haryana (India) has proposed “barring

entry of a person in the profession after the age of 45.”  (ExpressIndia.

com, Speakout “Age bar: Advocates divided over answer,” Nov. 17,

2005).Judging from some of the comments submitted to the Chandigarh

News-line, lawyers in that part of the world are far less worried about

appearing politically incorrect in print than we Americans. 

mountain village–
the old man doesn’t know
the dance
 

My very quick research, suggests that life

expectancy at birth in India is currently 64.4 years.  A

person living to age 45 would, naturally, have a life ex-

pectancy of more than 20 years — probably significantly

more.  (you can check out your life expectancy here)

 

the old dog
looks as if he’s listening…
earthworms sing

 

We’re told that the proposed rule “has fetched a mixed response from city

advocates. While the veterans feel that the new rule defies logic and

practicality, new entrants feel the rule will be fruitful for the new crop entering

the profession.”  Here are a few quotes:

Virinder Issar: I do not think that the proposed rule will do any 

good to the profession. . . . An assimilation of experience and

expression is the most lethal combination one can possess in

this profession, which normally a youngster lacks, and which,

comes from passing a certain age.

 

N.S. Minhas: I feel its a welcome decision and should be imple-

mented. This would benefit the young generation that has entered

the profession lately. People generally have a myth regarding our

profession that older the advocate more the experience he has.

When a client walks in and sees a grey-haired advocate, he will

certainly opt for him, may be not knowing that he is as new to the

profession as is a young lawyer.

 

in leafy shade
an old one’s voice…
a frog!

 

Malkiat Singh: It takes more than five years to understand the

legal procedure and settle down in this stream.

 

Surinder: It’s a wise step taken by the Bar Council. This will cut

down the traffic of people entering the profession.

 

even the pine tree
I planted grows old!
autumn dusk

 

Dinesh Kumar: I wonder, at the age of 45, what will

these grey haired people do? Will they have time to devote to the

profession? I think they will be more busy with their geriatric problems.

It’s a good decision as it will motivate young lawyers to enter into the

profession.

 

Well, what do you think?  Are you, or do you know, any gray-haired law students

or recent grads?   Is this unjustified age discrimination?  Guild mentality?  It seems

darn unAmerican to Prof. Yabut et al.

afterthoughts (9 AM):  A question and a memory: (1) how do law schools

in America treat applicants who are in their forties or older? 

 

(2) When I first moved to Schenectady, NY, in 1988, I met lawyer Mary

Coffin. Mary didn’t go to law school until she was over 40 years old, after

having a career as a registered nurse and raising eight children.  The legal

profession of Schenectady and New York State would have been far poorer

if Mary had been refused entry to the bar because of her “old” age.  Decades

of service to children at Family Court, to a myriad of clients in her “Main Street”

lawyer practice of Antokol & Coffin, and to the Bar, by Lawyer Coffin, belie any

notion that she didn’t have enough time after graduation to serve the profession

and her society.

 

 

 

lightning flash–
in pampas grass ensconced
a fifty year-old’s face

 

 

 

all haiku by Kobayashi Issa 

       translated by David G. Lanoue