Another Ridiculous Anti-Advertising Case from Florida

The Florida Supreme Court has a thing about advertising.  Here is an example.  A firm runs television ads.  The firm name is displayed, but with a picture of a pit bull wearing a spiked collar in place of the usual ampersand. The firm’s phone number, displayed in the ad, is 1-800-PIT-BULL. (The firm specializes in motorcycle accident law, so this sort of logo is not as inconsistent with a desirable practice image as one might think at first.)

The Florida bar complains that the pit bull parts of the ads violate the rule that “a lawyer shall not make statements describing or characterizing the quality of the lawyer’s services.”  The ads also are supposed to violate the rule that visual depictions “must be objectively relevant to the selection of an attorney and shall not be deceptive, misleading, or manipulative.”

The hearing referee has both perspective and perhaps a sense of humor.  One the first point, the referee opines that the pit bull is not a statement about the quality of the firm but about qualities—pit-bull-like lawyering is just aggressive lawyering, which could be good or bad.  The referee says the pit bull passes muster on the second rule as well.  It stands for loyalty, tenaciousness, and aggressiveness, which are qualities relevant to prospective consumers of legal services.  His report is  here.

Unencumbered by either perspective or a sense of humor, the Florida Supreme Court reverses.  It knows better than the referee.  The average consumer doesn’t think the qualities of a lawyer are different from the quality of representation, so pit bull is actually a sort of warranty of quality, and thus violates the first rule.  (The premise here may be right, but it is more paternalistic than I am comfortable with being, even apart from free speech issues, and it should be irrelevant to the main consumer welfare issues.)

The dog violates the second rule, too, the court says, because it is misleading.  The court says the ad implies that the lawyers are as aggressive as pit bulls, yet there is no way to measure that claim and thus no way to say whether it is true.  The same premise means there is no way to say it is false, of course, but that does not trouble the court, which also takes the time to point out that pit bulls can be vicious and even kill people, and to suggest that such criminality is the message the ad really sends. 

Anti-advertising rules are an outrage that would embarrass a less pompous profession, or one with a sense of shame about the claims it is willing to make for itself.  The rules are bad economically because, apart from actual fraud (which one needs no special anti-advertising rules to penalize), ads provide information that may well be useful to consumers, and which should tend to drive down prices, which is definitely useful to consumers. To the extent such rules are not redundant with more general laws, they are undesirable.

So what explains the rules?  Why do we have them?  Such rules are concerned about the dignity of lawyers, not the welfare of consumers.  After the Supreme Court struck down flat bans on advertising, so that competition on such basics as price and credentials could improve, bar associations have fought a rear-guard action, restricting as much as they can, generally by defining all sorts of things as misleading.  About all that is misleading, however, is the claim that the rules and their interpretations are really about consumer protection.

This opinion exemplifies these points. In fact, the best thing that can be said for it is that the Court said right up front that its main worry is that the ad “demeans all lawyers and thereby harm[s] both the legal profession and the public’s trust and confidence in our system of justice.”  The first half of this sentence is just uptight hand-wringing, but the second half is such overstated hooey that it is hard to read without laughing aloud.  If a doggy ampersand can bring down the profession, much less the system of justice, it has far greater problems than any anti-advertising rule can solve.

Lawyers are not inherently dignified, and neither is the profession.  Whether the profession deserves to be thought of as dignified depends on (i) how its members actually act; and (ii) on the opinions consumers form based on those actions.  In forming opinions, consumers are entitled to any information relevant to them, such as whether lawyers do or do not act as pit bulls for clients.

Lawyers who run such ads are the type of lawyers who would run such ads whether they run them or not.  The only difference between letting the ads run and suppressing them is that if the ads run people get a more accurate sense of the range of lawyers’ dispositions than they would if the ads are suppressed, meaning (and this is the last straw) that such rules mislead consumers (by giving them a false sense of the dispositions of lawyers) in the name of saving them from being misled. 

I hope the lawyers in this case petition for cert and that the Court takes this opportunity to undo the damage it did in Florida Bar v. Went For It, 516 U.S 618 (1995), where it treated the bar’s concern for its own image as a substantial state interest justifying anti-advertising measures.  That was an indefensible decision that is responsible for the ridiculous parsing of pit-bull symbolism that we see in this case. 

Professionalism aside, anti-advertising rules in general, and this opinion in particular, offend free speech values.  Lawyer advertising cases stand out as being the only area of law in which speech can be restricted by members of a class (lawyers) in order to make people think better of the class as a whole.  That judges are also members of the class makes things worse. When judges get into the business of deciding how people are likely to perceive expression, and penalizing that expression based on their presumed perceptions, they dive into a quagmire the First Amendment is supposed to keep them out of.

Given the juxtaposition of the referee's opinion with the court's one might be inclined to ask: who is to say what the pit bull means to consumers? Is the referee right, or the Supreme Court?  That is the wrong question, though, at least from a free speech perspective.  From that perspective the question is whether judges should decide whether the dog gives consumers the wrong idea, and whether the Constitution permits judges from defining an idea as wrong.  Apart from fraud, which is plainly not present here, the answer to that question should be "no."  It is only that strange notion that the government can restrict speech to make lawyers look good that empowers the referee and the Court to debate pit-bull symbolism here. 

Even if one accepts the indefensible premise that the state has a compelling interest in seeing to it that people see lawyers the "right" way, the court's free speech analysis here is too restrictive. The court’s claim that “lawyer advertising enjoys First Amendment protection only to the extent that it provides accurate factual information that can be objectively verified,” is a crabbed and unpersuasively formalistic summary of the cases.  For example, lawyers may advertise that they have been certified as specialists, which is verifiable in one sense, but whether the certification is worth anything depends on the procedures behind it, which courts do not delve into and which might well be as subjective as the court’s unsympathetic parsing of the pit bull logo.

Let’s be honest, here.  The pit bull conveyed information about the firm to consumers in terms consumers might well use themselves, and which some consumers would deem highly relevant.  No consumer would read the ads literally (nor as a threat to do violence to the other side, in one of the Court’s ridiculous conjectures), but they would get the point.  What they do then should be up to them, not to censorious judges who want the profession to seem to be more dignified than it is.

If the judges want to serve the public interest by taking something out and shooting it, it should be these rules, not the pit bull.

DM

( Here is a link to the firm and its logo, along with the firm's comments on the case.  Maybe the logo will stay up pending disposition of a cert petition.)

Comments

[David Hricik]

We just finished an interesting colloquium here on professionalism led by William Sullivan of the Carnegie Foundation, and his very thoughtful book, Work & Integrity. Though far afield from this point, that recent experience leads me to disagree in part.

I'm concerned that if we (the bar) do not aggressively police our image, others will do it for us, and at that point our position as a profession will be in jeopardy, if not be lost. We need to be "too serious" rather than not serious enough, in simple terms. If that means that, on occasion, we stop ads that are on the margins, I think that's a good thing, not a bad one.

As for this ad in particular, I agree with you that the court went too far, since the ad in its context seems both nonmisleading and arguably informative. But to me, and I'm writing with concerns about our professional independence heightened right now, it's at the margins and I'd rather they shut it down than we as a consequence have ads governed by law and regulations drafted by outsiders, rather than our own imperfect approach.

[Andrew Perlman]

This post hits the nail on the head. Advertising rules are enforced in often absurd ways, and the case you mention in Florida is one of a number of examples that come to mind. I agree with you completely about the Went For It case. It's really an awful decision and has contributed to the overzealousness of many bar associations in the area of lawyer advertising. The link that the Court endorses between advertising and the profession's image and trust in the judicial system is not only weak, but it's refuted by serious studies that have examined the question.

David (Hricik), I'm not sure I agree with your concern that, if the profession lets more advertising take place, others will define our image. By "others," do you mean other lawyers will be defining the profession's image instead of bar associations? If that's what you're suggesting, I'm just skeptical that more advertising will have especially dire consequences for the profession.

Andy

[Eric Goldman]

David M, I agree with almost everything you write. However, I think you too quickly dismiss the power of brand advertising on shaping consumer perceptions for the class of goods. If lawyers consistently run advertisements that analogize themselves to [pick your favorite ruthless killer from the animal kingdom], over time consumers will make those cognitive associations implicitly. Therefore, this type of advertising absolutely has the power to affect consumer perceptions of lawyers.

But so what? While I suspect that these cognitive effects would have deleterious effects on the legal industry, I don't know that to be the case. Intuition-based guesses about the consequences of consumer perceptions are unreliable at best, which is why I think this opinion and outcome are so condemnable. Eric.

[David Hricik]

I'm not sure I agree with my post, either, but by others I mean: legislators/the public. Look at what's happened to accounting (not because of ads, but it's the same principle).

"The cost of independence is eternal vigilance." :0)

[David Giacalone]

Eric, The public called lawyers sharks long before the notion of marketing campaigns and branding were ever conceived. Your last sentence is the most apt: "so what"?

[David Hricik]

I'll continue a bit: "Even if one accepts the indefensible premise that the state has a compelling interest in seeing to it that people see lawyers the "right" way..." I think that premise is quite defensible, for the reasons I stated above: if we don't allow ourselves to be policed, we'll be policed by others. I'd rather a court err a bit and take away the vital 1st amendment right to have dog on a lawyer ad than we go down a slippery slope where, eventually, it willl lead to great regulation.

If I understand the "so what" comment: that's what matters here, not the dog, or what consumers think of the dog, or whether the referee is right or not. It is a much larger issue than that: freedom of our profession may require greater regulation than the 1st amendment might allow plumbers.

[Andrew Perlman]

How exactly is the profession's liberalization of advertising rules going to lead to more outsider regulation of the profession? I'm not sure I see the connection between distasteful ads and government oversight of lawyers.

[David McGowan]

David H--

I think we may disagree on the proper ends of such policies. I tend to think in economic terms, so I would distinguish between the welfare of lawyers and social welfare in general. I think policies should maximize social welfare, not lawyer welfare.

It might well be that limits on advertising are good for lawyers because they help shore up a self-regulatory system. Whether that is good for society depends on whether self-regulation is good for society. I think self-regulation tends to be systematically self-serving, so I do not see erosion of self-regulation as inherently bad for society, though it might be bad for lawyers.

So I defend the claim that the state has no legitimate interest in controlling public opinions about lawyers on the ground that the restrictions through which such control is attempted will tend to reduce social welfare by denying consumers information they deem relevant. To me, the possibly correct proposition that such restrictions benefit lawyers as a class (though not those who wish to advertise) is not a defense of the restrictions. In fact, that a policy enhances lawyer welfare at the expense of consumers seems to me more an indictment of self-regulation than a defense.

If one thinks self-regulation is good for society, of course, one could defend the restrictions on net welfare grounds. For a variety of reasons, however, I am extremely skeptical of that claim.

DM

[David Hricik]

Andy: The more the public perceives that we need to be regulated, the more likely we are to be so. I think that's the connection.

[Andrew Perlman]

David (McGowan), your point that we shouldn't be terribly concerned about outsiders having more regulatory control is a good one, albeit more radical.

My response to David (Hricik) is more modest in that I am skeptical that distasteful advertising will lead to more control over the profession more generally. David, you say that, if the profession perceives that we need to be regulated, it's more likely to happen. I'm just not sure that I agree as an empirical matter that distateful ads will lead to more outside regulation in areas other than advertising. I guess we just disagree on the empirical link here.

[David Hricik]

David & Andy: I guess I would say we agree and disagree! David M: Perhaps you take too narrow of a view of the social good that is created by being a self-regulating profession, would be my argument. We -- lawyers, yes, but society as a whole -- would lose much if lawyering becomes nothing more than the sale of expertise, tightly regulated and with little professional autonomy. The reasons for self-regulation are not just self-protection, I believe, but that is perhaps where we part ways. Again, William Sullivan's book has got me thinking more about the value of professionalism as such, and I think it creates public good, not just private gain for lawyers.

With Andy's point, I believe ads will make a big point because they are visible to the public. I have been told, or perhaps even read, the studies that link the decline in lawyer perception with the rise of lawyer advertising, and I know the Justices in the seminal cases believe there to be a link, but I don't have any direct empirical support -- just a hunch or better worded, a fear.

[Michael Krauss]

I disagree with the main posting. If lawyering is a profession, not a business, then the profession should be able to police its image. Pure economic analysis of course is unable to fully derive ethical and professional groundings, which is one reason why it is a grossly incomplete way to look at Legal Ethics.

[carol smith]

i am not in accordance with the core posting this is because being a lawyer is one's main job and not an investment.there are many good lawyers out there.

carol
http://www.floridadrugrehab.com