A proposed opinion from the State Bar's ethics committee would curtail the use of animal images in legal advertising — a move that at least one lawyer views as treading too close to an infringement of First Amendment rights.
In April, the committee received an inquiry about an advertisement that depicted a ferocious-looking bear with the statement "Let The Bear At [our firm] Make Things Right!"
The question: Was the use of an animal image in legal advertising, generally or in conjunction with slogans, permitted under the State Bar's Rules of Professional Conduct?
At first, the committee issued an unpublished opinion that approved the advertisement.
"The bear image is not misleading as to the lawyer or the services to be rendered, and the slogan is too nebulous to create an unjustified expectation about the results the lawyer can achieve," the opinion said.
After the opinion was circulated among Bar councilors for comment during the ensuing months, the committee reversed its stance and decided to prohibit the advertisement.
Alice Neece Mine, legal counsel to the ethics committee, said that a revised proposed ethics opinion will be given to the committee at its Oct. 18 meeting in Raleigh.
The ban would be narrowly tailored to the specific animal image and slogan used in the advertisement and the misleading nature of combining an aggressive animal with the promise of "making things right."
Raleigh attorney Pressly M. Millen, a former chair of the client development committee for Womble Carlyle Sandridge & Rice, PLLC, said he disagreed with the ethics committee's apparent case-by-case approach to the issue.
He said that he is interested in the issue because Womble Carlyle has used images of a bulldog, "Winston," in its lawyer advertising for more than 10 years.
"Basically, it has the potential to put the Bar in a position where it's trying to regulate the content of speech," Millen told Lawyers Weekly, echoing concerns he expressed in a five-page letter to the Bar in August.
"Obviously, they can do that in the context of applying ethics decisions to advertising, but I think the further you inject yourself into the content-examining business, the further it becomes problematic," he said.
Although ethics Rule 7.2(a) permits a lawyer to advertise services through print, recorded or electronic media, Rule 7.1(a) requires all communications about a lawyer and the lawyer's services to be truthful and not misleading.
Misleading communications include those that misrepresent fact or law, create an unjustified expectation of results the lawyer can achieve or compare the lawyer's services with other lawyers' services without a factual basis.
According to Comment [3] to Rule 7.2, questions of effectiveness and taste in advertising are matters of speculation and subjective judgment, and they cannot be used to regulate the ad's content.
In the proposed ethics opinion issued by the committee in April, the committee said that the context in which an animal image is used could violate Rule 7.1 by suggesting the lawyer has expertise which he or she does not have.
Along those lines, a recent Florida Supreme Court decision prohibited the use of a pit bull logo and "1-800-PIT-BULL" phone number in a law firm's advertising.
The court in Florida Bar v. Pape, 918 So.2d 240 (Fla. 2005), said the ad suggested "combativeness and viciousness without providing accurate and objectively verifiable factual information."
This meant the ad violated Florida's rules of professional conduct and fell outside of First Amendment protections afforded to commercial speech by a string of U.S. Supreme Court decisions, including the seminal case of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
However, the problem with Pape was that it was based on the notion that a pit bull in legal advertising was "inherently demeaning" to the profession, Millen said.
If the Bar takes a case-by-case approach to regulating the use of animal images, he said, it will run into the same issue of whether it is banning an ad because it is "inherently misleading" or, like the court in Pape, it is acting on a matter of taste.
"When taste morphs into ethics, you're getting way into the frontier of what the First Amendment allows," he said.
Millen said that Winston has become a symbol for Womble Carlyle and the star of a successful, mostly out-of-state advertising campaign.
The bulldog has appeared in advertisements along with former governors and has been featured in the Wall Street Journal and the New York Times.
He also has endeared himself to the firm's lawyers because of his resemblance to a "tenacious, loyal, sometimes pugnacious" senior partner and because he conveys that the firm "is not without a sense of humor and even self-deprecation," Millen said.
If a case-by-case approach were taken, Winston could be safe.
"But if the ruling body turns over, and they don't like Winston, is he safe tomorrow?" Millen said. "I don't know. Nobody knows."
September 24, 2007
