James J. Kilpatrick

First question: How do you feel about trial lawyers? Second question: How do you feel about pit bull dogs? May the one breed lawfully adopt an image of the other?

The Supreme Court will step into this touchy question if it agrees to hear an appeal brought by two Fort Lauderdale lawyers against the Florida Bar. Some close questions of First Amendment law make it a tough case to call.

At least the facts are not in dispute. The two lawyers are John Robert Pape and Marc Andrew Chandler. Their practice goes primarily to personal injury litigation. Three years ago they began advertising their professional services through a series of television commercials. The commercials included a logo that featured an image of a pit bull wearing a spiked collar. The firm's telephone number was displayed: 1-800-PIT-BULL.

The Florida Bar charged them with violating its rules of professional conduct. After a one-day hearing in September 2004, special master William W. Herring ruled in their favor. He found nothing unethical in a commercial that promotes lawyers as bulldogs. The breed is identified "with the qualities a consuming public would want in a trial lawyer," e.g., that the lawyer is "aggressive, tenacious, loyal and persistent." He added:

    "The advertisement is tastefully done, the logo is not unduly conspicuous in its replacement of an ampersand between the partners' names, and the large print 1-800 number is an effective mnemonic device. ... There are no slogans, jingles, alarm bells or the like, nor does the ad suggest a favorable outcome through the employment of improper means."

The Florida Supreme Court was not impressed by Herring's report. In a remarkably stuffy opinion last November, the court unanimously rejected the referee's recommendation. Instead, the court found Pape and Chandler guilty of unprofessional conduct. If that ruling is not reversed, the two lawyers must suffer a public reprimand from the bar's Board of Governors and must attend the Florida Bar Advertising Workshop.

Florida's Chief Justice Barbara J. Pariente held that by invoking the image of a pit bull, Pape and Chandler "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." The image of a pit bull evokes an image of a lawyer who is vicious to the opposition. Some pit bulls may be loyal, persistent and tenacious, but these charitable associations ignore "the darker side of the qualities often also associated with pit bulls: malevolence, viciousness and unpredictability."

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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