A year and a day after the U.S. Supreme Court refused to hear the 800-PIT-BULL case, Pape & Chandler v. Florida Bar Ass’n, which could have curbed FBA’s overzealous Dignity Police (see our prior post), Texas Third-Wave lawyer Chuck Newton brought up the situation of Steven Miller, Esq., and his battle with the Florida Bar over ads for DivorceEZ.com. Newton asks: ”Does the Bar Have a Right to Regulate Good Taste” (Spare Room Tycoon, March 28, 2007) (via Carolyn Elefant, Legal Blog Watch).
- DivorceEZ is a ”flat-fee, no-frills divorce law practice,” and says it will help you “get out of the hell hole you call a marriage” and “get rid of that vermin you call a spouse.”
- You can read Miller’s press release here, and click to see the 30-second commerical the Florida Bar refuses to allow on tv.
The Florida Bar’s advertising review committee told Miller the problem is that the ad is a “verbal depiction” whose language promises a particular result. Newton says “Mr. Miller’s TV spot is not too serious, but stopping him from running it is.” Like virtually every observer, Chuck Newton believes the bar is trying to ban what it considers bad taste. Newton notes:
“Some people, like me, are turned off by this type of TV spot. Some people gravitate toward the hyperbole. Further, some people desperately need the services, at the price, this lawyer is offering. Nobody has demonstrated he is doing a bad job for his clients. Nobody is accusing him of not doing what he says he will do. No client is filing a grievance asking him to stop the ad. Only the Bar-tenders are not happy.”
Newton asks who put the Florida Bar in charge of good taste. Of course, the real question is whether the Florida Bar has any right to be censoring bad taste (a sufficient state interest). The Florida Supreme Court says yes, and the U.S. Supreme Court could have definitively answered that question last year, but declined the opportunity.
the rookie pitcher
blows a bubble
I agree with Chuck that “The Bar-tenders are concerned that the ad might work.” A decade as an antitrust regulator specializing in the learned professions makes that purpose seem most logical to me. I’ve been saying for years that a large segment of the bar does not like advertising, because it might provoke a spurt of price competition for customers, or usher in alternative methods for providing legal services. However, I do not agree with Chuck that “They are not concerned about the perception this might cause the legal profession in the state.” [emphasis added]
The Florida Bar specifically attacked Pape & Chandler’s pit bull logo and theme in 2004 because the dog was considered to be too nasty a symbol for lawyers and irrelevant to the selection of a lawyer. As we described in a prior post (Nov. 17, 2005), Florida’s highest court confirmed with alacrity, in Florida Bar v. John Pape and Marc Chandler (Fla. Sup. Ct., 2005., 20-pp pdf), stressing:
”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.”
At the public admonishment of Pape and Chandler, Florida Bar Association President Alan B. Bookman continued to stress their role as Dignity Police, saying “Permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice.” (more in prior post) The Bar had presented absolutely no evidence of consumer harm or of public views on the topic; what counted was the assumed affect on the Bar’s image.
rolls into the mud –
painted lady flutters up
In several posts (including here and there) over the past couple of years, I’ve described numbheaded attempts by the bar and courts to stifle advertising in the name of consumer protection and taste, but noted that the efforts demonstrated “a dislike of all lawyer advertising” — because it is perceived as undermining the profession’s supposed “dignity” (by suggesting we are actually in commerce) and instigating an outbreak of unseemly competition.” The two issues — dignity (taste) and competition — overlap. Part of the urge to uphold the profession’s image is, I’m convinced, the unstated belief that dignity helps to sustain an image that supports high fees. When ads such as those from DivorceEZ both threaten the Bar’s selfesteem and challenge entrenched pricing and service practices, it can be no surprise that phony issues are raised aplenty to keep the ads out of view of the public.
It’s not just the Florida Bar that wants to stifle as much advertising as possible. Kentucky and Missouri show the same tendencies (prior post). Moreover, as I pointed out in a post earlier this year, the New York State Bar Association explicitly established a task force on lawyer advertising in 2005 “to develop rules, standards and mechanisms aimed at limiting lawyer advertising to the fullest extent permitted, within the limitations of the First Amendment.” (NYSBA press release, June 1, 2005)
In a way, I think the urge to police for bad taste and enforce dignity is more dangerous for the future of the profession, and its relationship to the consuming publc, than any anticompetitive intent behind advertising regulations. (For one thing, having restrictive rules adopted by the courts almost always gives antitrust immunity to proponents in the Bar.) Along with the FTC and the drafters of the Model Code, I believe that regulating taste has little or nothing to do with protecting consumers, and can harm them by limiting useful information and choice (prior post). Nonetheless, I’m pretty sure that new service and pricing options can be brought to the public in effective ways that can pass any reasonable “taste test.”
On the other hand, with their insistence on presenting a tasteful, dignified image to the public, the Dignity Police are almost certainly further damaging the very image that the Lawyer Guild wishes to gild. In an early post at this website (“first thing, let’s quell all the liars“), I made a still-relevant plea:
My message to the legal profession: You do need more PR, but it must be Professional Responsibility, not Public Relations. Image crafting only sounds like more deception to the average (and above-average) American. Like more lies. Lost trust has to be earned the hard way — client by client, case by case, with the focus on competence, diligence, and loyalty toward the client; on responsibility toward society rather than toward guild and gelt; on virgorous overseeing rather than overlooking of ethical rules; and on service rather than self-importance.
The ridicule that the mainstream press (e.g., St. Petersburg Times editorial, and James J. Kilpatrick column), and the blogosphere (e.g., from Hornsby, to Whisner, to Elefant, and Pfeiffer) heaped on the Florida Supreme Court for its banning of the pit-bull campaign is an indication that attempts to maintain/create an appearance of dignity has just the opposite effect. Of course, virtually every non-lawyer on the planet knows that (and even most lawyers do). Just consider how we feel about the phony-genteel and dignified-prissy folk we’ve met in our lifetimes.
For the lexiconically minded, here are some definitions of self-importance:
American Heritage: self-importance: Excessively high regard for one’s own importance or station; conceit. (The American Heritage® Dictionary of the English Language: Fourth Edition. 2000)
Dictionary.com: self-importance: having or showing an exaggerated opinion of one’s own importance; pompously conceited or haughty.
WordNet 3.0 Vocabulary Helper: self-importance: 1. an inflated feeling of pride in your superiority to others [syn: ego] 2. an exaggerated opinion of your own importance [syn: egotism]
In contrast, WordNet notes that dignity is a Coordinate Term for the noun self-importance. “Dignity” is the quality of being worthy of esteem or respect. Dignity comes from your values and your actions. Acting self-important is both undignified and tasteless.
- Update (April 1, 2007): Thanks to George Wallace (who is not afraid to refer to himself as A Fool in the Forest, whatever the Dignity Police might prefer) for including this posting in his April Fool’s Blawg Review Prequel 2007. His prequel to tomorrow’s Blawg Review #102 (which George hosts at his Declarations & Exclusions insurance law weblog) is surely one of the more intelligent celebrations of April’s Fool’s Day you will find in the blogoshpere. Its list of interesting recent posts from law-related weblogs is ”constructed . . . around illustrations from Stultifera Navis, the 1497 Latin translation of Sebastian Brant’s 1494 satirical German text, Das Narrenschiff, aka The Ship of Fools.”
- In George’s Blawg Review Prequel, I learned that Eric Turkewitz penned “New York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor” this week. (NY Personal Injury Law Blog, March 28, 2007) After excerpting the NY response to a challenge to its new, overly restrictive lawyer advertising rules (described in our prior post), Eric scoffs, “So there it is, the ultimate lawyer joke, brought to you New York Attorney General Andrew Cuomo: Humor has now been banned.” George ‘s Prequel also points to MyShingle‘s interesting take on DivorceEZ v. FBA.
called third strike –
the slow roll of the ball
back to the mound
seventh-inning stretch –
dust from dragging the bases
hangs in the air
i pick off
the invisible man on first