By Adam Karp

John Robert Pape and Marc Andrew Chandler ran a plaintiffs’-side firm in Fort Lauderdale, Florida. To garner business, they advertised their services with a novel mnemonic and graphic device. Capitalizing on the reputation of the mighty pit bull, they used the image of this spike-collared animal in place of the ampersand for their firm name of Pape and Chandler. After working through what must have been dozens of iterations for their toll-free number, they settled upon 1-800-PIT-BULL.

Word of this cheap marketing doggerel spread and the Florida Bar Association’s Office of Disciplinary Counsel took action, accusing Pape and Chandler of violating RPC 4-7.2(b)(3) & 7.2(b)(4). The referee found no violation in using the logo, noting that it described the quality of the attorneys but not their services. Perhaps the referee respected how pits were “loyal, persistent, tenacious, and aggressive,” relevant factors to a consumer selecting an attorney. And the 1-800-PIT-BULL mnemonic device, while memorable, was not unprofessional. Besides, Pape and Chandler’s First Amendment rights to commercial speech nullified enforcement of the RPCs, argued the referee.

The Florida Supreme Court disagreed.1 First, the comment to RPC 7.1 prohibited sensationalistic imagery and slogans. Second, the referee’s “artificial” distinction between the quality of the attorney versus service was unconvincing. Third, the comment to RPC 7.2(b)(4) prohibited ads appealing to emotions. For instance, the Florida Supreme Court banned the use of a fist logo on the grounds that it conveyed an overly brutal message; remember, the law is supposed to be governed by reason, not force.

Indeed, the crux of the Pape dispute centered on how one regards the innate nature of this breed (or, more accurately, this catch-all term for multiple similar breeds, like the American Staffordshire Terrier). The Florida Supreme Court rejected the referee’s charitable omission of the less desirable traits associated with pit bulls, such as “malevolence, viciousness, and unpredictability.” It went so far as to suggest that the “pit bull” embodied the CR 11 mongrelization of the legal profession. The court supported this conclusion by invoking dog-bite related fatality reports, identifying pit bulls as some of the most dangerous dogs around.

On the First Amendment question, the court noted that historically, while commercial speech protections apply even to lawyers, legal ads were still subject to reasonable regulations.2 The court distinguished the Ohio case of an attorney using the Dalkon Shield in advertisements.3 In Zauderer, the U.S. Supreme Court noted that the use of the Dalkon Shield informed women that this attorney represented clients in cases involving this intrauterine device and, far from being misleading or appealing to emotions, was strictly factual and informative.

The Florida court had little difficulty distinguishing a pit bull’s head from a birth control device since Pape and Chandler’s practice apparently had nothing to do with pit bulls or dogs in general. In a stroke of totemistic paranoia, the court cautioned that if it permitted pit bulls to dominate lawyer ads, we could all expect attorneys sidling up beside sharks, wolves, piranhas and crocodiles to peddle their practices. Pape and Chandler received a public reprimand and were ordered to attend a legal advertising ethics course.

For animal law attorneys, however, the use of the pit bull would be indisputably relevant to finding counsel well-versed in litigating cases involving attacks by pit bulls or euthanasia disposition orders where pit bulls declared dangerous are fighting for their lives.

Alternatively, transactional lawyers focusing on wealth retention might get away with enlisting the frugal, stockpiling image of the ant (care of the fable involving the ant and grasshopper). ADR attorneys striving for collaborative lawyering and mediation could rely on gentle creatures like the lamb or baby chick. And probate lawyers could make use of the venerable tortoise to ensure longevity with their well-crafted wills and trusts. But if dogs are the species of advertising choice, 1-866-SHIH-TZU and 1-877-POODLES are certainly still available. n

1 The Florida Bar v. Pape, 2005 WL 3072013 (Fla.), Nov. 17, 2005.

2 See Bates v. State Bar of Arizona, 433 U.S. 350 (1977).