Thomas Jefferson Center for Protection of Free Expression Hands Florida Supreme Court a ¡¡ãMuzzle Award¡¡À for its Decision in FL Bar v. Pape & Chandler

Update 4/7/2006

We began representing victims in personal injury cases in 1993 (John Pape) and 1996 (Marc Chandler), respectively. As the years passed, and our experience as personal injury attorneys grew, we realized that experience and excellent results didn't necessarily translate into new clients. Based on that realization, we decided, in the spring of 2001, that we would attempt to market our services through television advertising. We decided that our television advertisements would inform potential clients that we are young and aggressive lawyers and that we provide a high level of personal service to our clients. While we thought that the message was accurate and appropriate (and our scripts for the television commercials had been approved by the Florida Bar's Standing Committee on Advertising), we realized that the information that we wanted to spread through our advertising would be useless if the potential clients did not have an easy way to remember the telephone number, so we decided that we needed to acquire a telephone number that was easy to remember. We considered several easy-to-remember telephone numbers when we came up with the number (800) PITBULL. We felt that the American Pit Bull Terrier embodied the characteristics that we thought we have and the characteristics that we thought potential clients would want: strength, courage, loyalty and tenacity. We commissioned an artist to design a logo of the head of an American Pit Bull Terrier and then used the new logo and telephone number in our advertisements.

We began running the ads on television in June of 2001. In September of 2001, we began receiving telephone calls from another personal injury attorney who was, at that time, the President-Elect of the Florida Bar (an arm of The Florida Supreme Court that is responsible for lawyer regulation in the State of Florida). That attorney did not like our telephone number and the logo and, on October 3, 2001, he filed a complaint with the Florida Bar in which he stated [i]t is my belief that the conduct on the part of Mr. Pape and Mr. Chandler and the advertisements they air on television violate the Rules Regulating the Florida Bar. That Complaint was assigned to the Florida Bar's staff attorney who, after reviewing it, apparently decided that our aforementioned telephone number and logo created unjustified expectations. The Florida Bar staff attorney, on October 24, 2001, sent letters to us through which she requested a response to the Complaint. We timely filed our responses to the Complaint. The Complaint and our responses thereto were reviewed by a grievance committee of the Florida Bar that determined that our commercials and the telephone number ending in PIT-BULL and the logo did not violate the Rules Regulating the Florida Bar, and on December 7, 2001, the Florida Bar's Grievance Committee assigned to review the Complaint issued a Notice of No Probable Cause and Letter of Advice to Respondent to us stating: [t]he grievance committee has found no probable cause in the referenced case against you and the complaint has been dismissed.

Approximately one year after the Florida Bar's Grievance Committee issued its December 7, 2001 Notice of No Probable Cause and Letter of Advice to Respondent exonerating us, we began receiving telephone calls from Maria Sperando, another personal injury attorney who did not like the logo or telephone number. Ms. Sperando then complained to the Florida Bar who began another investigation. The investigation into Ms. Sperando's complaint yielded a finding of probable cause from the Florida Bar's Statewide Advertising Committee. Specifically, the Florida Bar's Statewide Advertising Committee charged us with violating two of the Rules Regulating the Florida Bar: Rules 4-7.2 (b)(3) and 4-7.2(b)(4). Rule 4-7.2(b)(3) states: A lawyer shall not make statements describing or characterizing the quality of the lawyer's services in advertisements and written communications. Rule 4-7.2(b)(4) stated at the time of the Sperando Complaint [v]isual or verbal descriptions, depictions, or portrayals of persons, things, or events must be objectively relevant to the selection of an attorney and shall not be deceptive, misleading, or manipulative.

The Florida Bar, in response to its Statewide Advertising Committee's finding of probable cause against us, on January 12, 2004, filed a complaint in the Supreme Court of The State of Florida against us in its effort to stop us from using the telephone number 1 (800) PITBULL and our American Pit Bull Terrier logo in our advertisements and to also penalize us for having used the number and logo in our advertisements.

The Supreme Court of Florida referred the case to the Chief Judge of the 17th Judicial Circuit of Florida who ultimately assigned the case to the Honorable Judge William W. Herring. Judge Herring presided over the matter from that point, and after discovery, numerous pretrial motions and hearings, Judge Herring set the trial of the case for September 14, 2004. As the Florida Bar had alleged that we violated the aforementioned Rules Regulating the Florida Bar, we asked the Florida Bar the following questions to be answered under oath:

Describe in detail how the telephone number ending in PIT-BULL is not objectively relevant to the selection of an attorney' and is deceptive, misleading, or manipulative' in violation of rule 4-7.2(b)(4) of the Rules Regulating the Florida Bar.

Describe in detail how Pape & Chandler, P.A.'s logo (head of an American Pit Bull Terrier with collar) is not objectively relevant to the selection of an attorney' and is deceptive, misleading, or manipulative' in violation of rule 4-7.2(b)(4) of the Rules Regulating the Florida Bar.

The Florida Bar answered the above questions under oath as follows:

The designation of the word PIT-BULL in the telephone number is not objectively relevant because it is not informational and it is manipulative because it appeals to the emotions of the consumer as the pitt-bull (sic) is commonly perceived as aggressive, unrelenting, loyal and determined.

The designation of the word PIT-BULL in the telephone number is not objectively relevant because it is not informational and it is manipulative because it appeals to the emotions of the consumer as the pitt-bull (sic) is commonly perceived as aggressive, unrelenting, loyal and determined.

The Florida Bar never prior to, or at, the September 14, 2004 trial in the case, asserted that the telephone number or the logo was deceptive or misleading.

The parties to the case (The Florida Bar and John Pape and Marc Chandler) filed memoranda of law to assist Judge Herring in his evaluation of the facts, and the law that were applicable in this case. Judge Herring, after reading the parties' respective memoranda of law, and taking testimony and hearing argument by the parties in a 2 hour and 45 minute hearing ruled that neither the 1 (800) PITBULL number, nor our logo violated the Rules Regulating the Florida Bar, and that the Rules Regulating the Florida Bar are unconstitutional as The Florida Bar applied them in this case.

This case has caused a great deal of controversy and interest amongst the public, the media and other attorneys. Accordingly, we have posted the memoranda of law that the respective parties filed in this case, as well as a copy of Judge Herring's ruling so that you can judge the case for yourself.

Florida Bar Memorandum of Law

Pape & Chandler's Memorandum of Law

Amended Final Order of Referee William W. Herring

Pape & Chandler press release

The Florida Bar was not happy with Judge Herring's ruling exonerating us in the case, so they appealed Judge Herring's ruling to the Florida Supreme Court. The Florida Bar hired an attorney named Barry Richard (who represented President George W. Bush in the 2000 election case before the Florida Supreme court) to represent it in the appeal to the Florida Supreme Court. The following links will take you to the briefs of the Pape & Chandler and The Florida Bar. We encourage you to read the briefs so you can determine which party's arguments were more compelling.

Initial Brief of The Florida Bar

Answer Brief of Pape & Chandler

Reply Brief of The Florida Bar

On November 17, 2005 the Florida Supreme Court rendered their decision in the case of The Florida Bar v. Pape & Chandler. We were disappointed not only by the result of the appeal to the Florida Supreme Court, but also by the Florida Supreme Court's decision to ignore the law regarding the scope of their review in this case, the Florida Supreme Court's decision to perform its own fact-finding in the case (to make up for the lack of facts presented by the Florida Bar at the September 14, 2004 trial of the case), the Florida Supreme Court's decision that the telephone number and logo were inherently misleading despite the fact that the Florida Bar never once contended that the telephone number or logo were deceptive or misleading and there was no evidence that the phone number or logo were deceptive or misleading on the record, and the degree of judicial activism demonstrated by the Florida Supreme Court. We, as well as countless First Amendment scholars continue to believe that neither the telephone number nor the logo contravene the Rules Regulating the Florida Bar, and are convinced that the November 17, 2005 decision of the Florida Supreme Court merely reflects the fact that the officers of the Florida Bar (an arm of the Florida Supreme Court) just do not like the telephone number or the logo. We, once again, invite you to read Judge Herring's Amended Final Order, the briefs of the parties to the case, and the opinion of the Florida Supreme Court to form your own opinion as to the propriety of the Florida Supreme Court's opinion.

Please note that the Florida Supreme Court, as one of the grounds for reversing Judge Herring's ruling, stated that the Pit Bull telephone number and logo were demeaning to the legal profession. In an incredible twist of irony, Mr. Richard's most famous client, President George W. Bush, once called Harriet Miers a pitbull in size 6 shoes. President Bush later nominated Ms. Miers to be White House Counsel and then to the Supreme Court of the United States of America. Do you think President Bush thought he was demeaning Ms. Miers or the legal profession when he called Ms. Miers a pitbull in size 6 shoes?

The United States Supreme Court has held that there is a right of commercial free speech unless the commercial speech is false or misleading. If the speech is false or misleading, then the U.S. Supreme Court test to determine whether a law abridging that commercial speech is not applied. The Florida Supreme Court went to great lengths to classify the telephone number and logo as inherently misleading so they could avoid applying the United States Supreme Court's test for commercial free speechthe Central Hudson test. The Florida Supreme Court, by invoking the buzzwords inherently misleading were able to avoid applying the Central Hudson test, a test that the Florida Bar's attempted prohibition of our commercial speech would have failed miserably. This is especially problematic because the Florida Bar never once alleged that the speech was deceptive or misleading until they filed their appellate brief.

Florida Supreme Court's Decision

We received many calls and e-mails in the wake of the Florida Supreme Court's decision in our case including an e-mail from one of the leading First Amendment scholars, Rod Smolla (Dean of the University of Richmond School of Law). Rod felt that the Florida Supreme Sourt's decision was wrong and offered to represent us in an appeal to the United States Supreme Court. We accepted Rod's offer and on February 15, 2006, Rod filed our appeal to the United States Supreme Court. Unfortunately the United States Supreme Court declined to hear our case, so the Florida Supreme Court's November 17, 2005 ruling will stand and we will no longer be able to use our logo or telephone number in our advertising.

Pape and Chandler's Petition to the US Supreme Court

Surprisingly, the Florida Bar does not have a problem with law firms using a lion's (the king of the jungle) head as its logo www.wpblawyers.com or www.searcylaw.com, but does have a problem with law firms using panthers as its logo www.panterlaw.com . We recently spoke with the person in charge of lawyer advertising with the Florida Bar about the propriety of the lion's heads in logos, and he told us something to the effect that lions are not as vicious as American Pit Bull Terriers, but panthers are vicious and they are investigating the panther logo. The conversation went from ridiculous to sublime. Upon hearing those assertions we had to ask the representative of the Florida Bar if he would rather take his chances with a pit bull or a lion, we heard crickets on the other end of the phone. We would imagine that Siegfried's partner, Roy, would tell you that lions are pretty vicious animals.