![\"PlayboyBunnyN\"](\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/04\/PlayboyBunnyN.jpg\")
\u00a0 Legal weblogs and their often neglected comment sections get busy whenever lawyer lewdness is the topic.\u00a0 No one was surprised this week, then,\u00a0when David Lat focused his legal tabloid Above the Law<\/em><\/a> on the case of third-year Brooklyn Law student Adriana Dominguez, who — according to the NY Daily News<\/a><\/em> — appeared last January\u00a0on the Playboy TV series “Naked Happy Girls,” in an episode titled\u00a0The Rock Star and the Lawyer<\/em>.\u00a0 At AtL<\/em>, there was a lot of the usual sophomoric\u00a0snickering, along with\u00a0musing over whether law firms or clients would want to hire Adriana.\u00a0<\/p>\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Things actually got\u00a0a little lawyerly, however, when the question turned to whether Adriana’s escapade might cause bar applicant Dominguez to flunk the Character and Moral Fitness evaluation that is part of acceptance into the bar.\u00a0 At Feminist Law Professors blog<\/em><\/a>, South Carolina U. Prof. Ann Bartow<\/a> concluded “I don’t think nudity is an ethical violation,” and called Peter Lattman of the WSJ Law Blog<\/em><\/a>\u00a0an “asshole” for even asking the question.<\/p>\n \u00a0\u00a0 Constitutional Law and weblog maven Eugene Volokh gave us a considerably more thoughtful assessment of the issue than did Prof. Bartow, in\u00a0his “Posing for a Playboy Video<\/a>\u00a0and a Would-Be Lawyer’s ‘Character and Moral Fitness” Evaluation’,” at Volokh Conspiracy <\/em>(April 12, 2007; via Robert Ambrogi at LegalBlogWatch<\/em>, “The Right to Bare Arms, Etc.,”<\/a> April 13, 2007) Prof. V. sets up the facts with\u00a0excerpts from the NY Daily News<\/em>, including a quote from an unamed representation of the NY Bar’s Fitness Committee: “It may have an effect. It’s a possibility in the worst-case scenario that the person does not get admitted.”\u00a0 After noting that “Rightly or wrongly, such behavior may make employers and clients think the less of you,”\u00a0the Professor gives this analysis:<\/p>\n “[I]t seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity).<\/p>\n “The government has been historically granted some extra latitude when it comes to licensing lawyers. . . . But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here.<\/em>”\u00a0 [emphasis added]<\/p><\/blockquote>\n Although Prof. Volokh has given us a thoughtful analysis, I’m afraid it may be wishful thinking<\/em> — the kind of overly-optimistic assertion that is often used by strong advocates of free speech rights in the face of ethical limits on lawyer speech.\u00a0(see my Comment at Consumer Law & Policy Blog<\/em><\/a>, where first amendment claims were\u00a0confidently raised against the recently adopted New York lawyer advertising rules)\u00a0Before we say the courts would find this to be an easy 1st Amendment case, we need to consider recent machinations by the law profession’s Dignity Police<\/em>, which strongly suggest that “a pretty powerful explanation of why the speech may undermine the administration of justice<\/em>” may in fact not be required by the judiciary before lawyers are disciplined, disbarred, or denied bar membership based on their speech.\u00a0 \u00a0\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A prime example of bar and judicial concern over lawyer speech that demeans the profession is the battle of the Florida Bar Association’s ethics watchdogs and the Tallahassee firm of Pape & Chandler (which specializes in motorcycle accidents) over its use of a pit bull image in\u00a0place of an ampersand in its\u00a0letterhead and of\u00a0the 800-PIT-BULL phone number.\u00a0\u00a0 The Bar had presented absolutely no evidence of consumer harm or of public views on the topic; what counted was the assumed affect on the Bar\u2019s image.\u00a0 The hearing referee specifically held that applying the bar’s advertising rules to ban the P&C pitbull — which, as you can see here<\/a> is a dignified,\u00a0sleepy-eyed, non-growling doggy — violates the First Amendment rights of lawyers Pape and Chandler.\u00a0 The Florida Supreme Court strongly disagreed, in Florida Bar v. John Pape and Marc Chandler<\/a><\/em> (Fla. Sup. Ct., 2005., pdf).\u00a0 Here are a few excerpts:<\/p>\n \u201dThese devices, which invoke the breed of dog known as the pit bull, demean all lawyers and thereby harm both the legal profession and the public\u2019s trust and confidence in our system of justice.\u201d<\/p>\n “[B]ecause the use of an image of a pit bull and the phrase ‘pit bull’ in the firm\u2019s advertisement and logo does not assist the public in ensuring that an informed decision is made prior to the selection of the attorney, we conclude that the First Amendment does not prevent this Court from sanctioning the attorneys based on the rule violations.”<\/p>\n “Indeed, permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice. Prohibiting advertisements such as the one in this case is one step we can take to maintain the dignity of lawyers, as well as the integrity of, and public confidence in, the legal system. Were we to approve the referee\u2019s finding, images of sharks, wolves, crocodiles, and piranhas could follow. For the good of the legal profession and the justice system, and consistent with our Rules of Professional Conduct, this type of non-factual advertising cannot be permitted.”<\/p>\n “We also disagree with the referee\u2019s conclusion that the application of rules 4-7.2(b)(3) and 4-7.2(b)(4) to prohibit this advertisement violates the First Amendment. Lawyer advertising enjoys First Amendment protection only to the extent that it provides accurate factual information that can be objectively verified. This thread runs throughout the pertinent United State Supreme Court precedent.”<\/p>\n “We conclude that an advertising device that connotes combativeness and viciousness without providing accurate and objectively verifiable factual information falls outside the protections of the First Amendment.”<\/p><\/blockquote>\n Click on the pit bull banner link above to see just how\u00a0slight an\u00a0“”explanation of why the speech may undermine the administration of justice<\/em>”\u00a0was required for the Florida Court to\u00a0discipline Pape & Chandler.\u00a0\u00a0At the public admonishment session, Florida Bar Association President Alan B. Bookman continued to stress their role as Dignity Police, saying that\u00a0\u201cPermitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice.\u201d\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Of course, it isn’t just Florida which has shown such tendencies.\u00a0\u00a0In 2005,\u00a0South Carolina made it unlawful for a lawyer to advertise with \u201ca nickname that creates an unreasonable expectation of results.\u201d\u00a0 [S.C. Code Section 39-5-39(1)]\u00a0 See our prior post<\/a>. New York’s new lawyer advertising rules similarly ban utilizing \u201ca nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.\u201d Sec. 2000.6(c)(7)<\/a>\u00a0 As such rules are meant to reach innocuous nicknames like “The Hammer” and “Heavy Hitters,” it is clear that the worry is far more likely to be lawyer dignity and image\u00a0than consumer protection and the prevention of misleading claims.\u00a0\u00a0<\/p>\n Don’t forget<\/em>: the rules in New York and South Carolina have been reviewed by the highest courts in each state prior to inclusion in the\u00a0lawyer’s professional responsibility code — after<\/em> public comment that surely raised free speech issues.\u00a0<\/p><\/blockquote>\n \u00a0\u00a0\u00a0\u00a0\u00a0It’s clear, then, that\u00a0ethics committees and reviewing courts in several states are highly likely to equate demeaning the image of lawyers with despoiling the entire legal system.\u00a0 How outlandish is it, therefore, to suggest that appearing in softporn ventures that specifically play off the star’s connection to the legal profession would raise fitness issues for a bar applicant, by undermining the administration of justice?\u00a0 The next question is:<\/p>\n How likely would it be that bar fitness committees are so prudish as to make the connection between widely-distributed softporn featuring a bar applicant and his or her fitness to be a lawyer?<\/em><\/p><\/blockquote>\n You can draw your own conclusions in answering that question.\u00a0 I suggest you take into consideration the following recent examples of bar neo-puritanism at work:<\/p>\n \u00a0\u00a0\u00a0 update<\/em><\/strong> (April 15, 2007): Prof. Volokh wrote to say that I have only pointed to cases involving commercial speech, which “has long been less protected than other speech.”\u00a0 The issue, of course, is whether noncommercial speech by lawyers has so much<\/em> more<\/em> protection than commercial speech that we can safely ignore the fact that the courts and the Bar have been (a) too willing to designate disfavored promotional activities as demeaning to the profession and then (b) too quick to equate the purported injury to lawyer image with injury to the legal system deserving of discipline.\u00a0 Rather than assuming ample First Amendment protection, we should be letting the Dignity Police know that the legal profession looks far worse trying to defend its supposed dignity than it would by granting its members the broadest possible free speech rights (and thereby also giving the public credit for having more than half a brain). [update <\/em>(April 17, 2007):\u00a0see our post Dignity Police censure Felder for penning “Schmucks!”]<\/a><\/p>\n \u00a0<\/p>\n one button undone\u00a0\u00a0\u00a0 . . . by George Swede – from Almost Unseen<\/em> (2000)<\/p>\n \u00a0<\/p><\/blockquote>\n sua sponte<\/em> —\u00a0 . . .\u00a0 by dagosan<\/p><\/blockquote>\n \u00a0<\/p>\n \u00a0<\/p>\n Clothesline Warm breeze \u00a0<\/p>\n me in one hand \u00a0<\/p>\n . . . . . . . . . by roberta beary, esq.<\/p>\n \u00a0<\/p>\n at the end of Lent the taste of you<\/p>\n \u00a0<\/p><\/blockquote>\n . . . . by jim kacian<\/p>\n \u00a0<\/p>\n","protected":false},"excerpt":{"rendered":" \u00a0 Legal weblogs and their often neglected comment sections get busy whenever lawyer lewdness is the topic.\u00a0 No one was surprised this week, then,\u00a0when David Lat focused his legal tabloid Above the Law on the case of third-year Brooklyn Law student Adriana Dominguez, who — according to the NY Daily News — appeared last January\u00a0on […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[555,3513,900],"tags":[],"class_list":["post-7476","post","type-post","status-publish","format-standard","hentry","category-haiku-or-senryu","category-lawyer-news-or-ethics","category-viewpoint"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1WA","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7476","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=7476"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7476\/revisions"}],"predecessor-version":[{"id":12563,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7476\/revisions\/12563"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=7476"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=7476"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=7476"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"PlayboyBunnyS\"](\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/04\/PlayboyBunnyS.jpg\")
\u00a0 Let me make this clear<\/em> (for the sake of Prof. Bartow and others who might condemn the messenger for his\u00a0issue-raising message): I do not<\/em> believe that appearing in this one softporn video should justify denying entrance to the Bar.\u00a0 My question\u00a0in this posting\u00a0is whether a bar fitness committee might disagree and the courts uphold the rejection.\u00a0\u00a0My concern arises in the context of recent efforts across the nation of bar groups, grievance committees and courts\u00a0using ethics rules to maintain the dignity and image of the profession — especially given Ms. Dominguez’s\u00a0desire to\u00a0counter the reputation of lawyers as boring and the specific connecting of her performance by the producer with her status as a lawyer.<\/p><\/blockquote>\n![\"dog](\"http:\/\/cyber.law.harvard.edu\/blogs\/static\/ethicalesq\/dogblack.gif\")
\u00a0 \u00a0The Dignity Police have been very active within the legal profession in recent years (see, e.g.<\/em>, our recent post on the bar’s undignified self-importance<\/a>).\u00a0 Although the instances have involved various aspects of lawyer advertising, I do not believe the context of “commercial<\/em> free speech” can easily be discounted or ignored, given the stress that has been given to the link between “speech” that demeans the profession and the need to preserve public trust in the justice system.\u00a0 As Professor Volokh notes, a lawyer may be disciplined (and, implicitly, denied membership) for\u00a0“conduct that is prejudicial to the administration of justice,” under Model Rule 8.4<\/a>(d).<\/p>\n![\"PitBullLogoS\"](\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/04\/pitBullLogoS.jpg\")
\u00a0 pit bull banner<\/a><\/p>\n![\"FloridaMap\"](\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/03\/floridaMap.jpg\")
\u00a0\u00a0The U.S. Supreme Court could have curbed FBA\u2019s overzealous Dignity Police, but in March 2006 it refused to hear Pape & Chandler v. Florida Bar Ass\u2019n <\/em>(see our prior post<\/a>).\u00a0 Were it ever to grant cert<\/em> in such a case, I see little reason to\u00a0hope that this Supreme Court would disagree with similar decisions, given its\u00a0deference to “states’ rights” and the very high probability that it also buys into the lawyer dignity conceit.\u00a0 Thanks to the Court’s inaction in P&C<\/em>, the Florida Bar is currently continuing its campaign against bad taste by attacking tv ads for DivorceEZ.com<\/a><\/em>.\u00a0 (See our post\u00a0in late March\u00a0on the bar’s undignified elf-importance<\/a>; as well as Spare Room Tycoon<\/a><\/em>, and Legal Blog Watch<\/em><\/a>)<\/p>\n![\"MassWeeklySuit\"](\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2006\/11\/MassWeeklySuitN.gif\")
\u00a0 big<\/font><\/a><\/font>\u00a0\u00a0The brouhaha over this Jiwani<\/font><\/a> ad’s appearance in\u00a0Massachusetts Lawyers Weekly<\/em> last November (as\u00a0discussed in my posting “puritans, prudes and professional picklepusses<\/a>,” which has many links and quotes)\u00a0seems quite telling. The advertisement, which\u00a0declares \u201ca custom-tailored suit is a natural aphrodisiac,\u201d ended up being pulled by MLW’s editor.\u00a0\u00a0Leading the attack on\u00a0the ad was the Massachusetts Women\u2019s Bar Association, whose President, Kathleen M. O\u2019Connor, wrote to MLWeekly<\/em> that \u201cAs lawyers, we are obligated to fight against gender discrimination, in whatever form it may take,\u201d and that \u201cWe expect more from this newspaper.\u201d\u00a0 In a necessarily unscientific online poll, the Boston Globe asked \u201cIs this ad too risque?\u201d and over 78% of the respondents said \u201cno\u201d.\u00a0\u00a0\u00a0<\/p><\/blockquote>\n![\"ERISALawyersATL\"](\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/04\/ERISALawyersATL.jpg\")
\u00a0\u00a0 Similarly, writing at FemLawProfBlog<\/em><\/a>\u00a0last September, the very same Prof. Ann Bartow who\u00a0gives Adriana a pass for appearing in porno, wanted to string David Lat up by his gavel — because he was holding\u00a0an ERISA Lawyer Hottie Contest<\/a>\u00a0at Above the Law<\/em>.\u00a0(See our prior post<\/a>, and Ambrogi’s at\u00a0LegalBlogWatch<\/em><\/a>)\u00a0\u00a0Bartow called\u00a0the Contest\u00a0“mean and sickening.”\u00a0 How far is that claim from one of demeaning the profession?<\/p>\n![\"erasingS\"](\"http:\/\/cyber.law.harvard.edu\/blogs\/static\/ethicalesq\/erasingS.gif\")
\u00a0 <\/font>I recall, but have not been able to locate online discussion of\u00a0a recent\u00a0episode in the legal community where a female lawyer was ordered or convinced to stop using an overly-racy photograph of herself in her ads. I’d appreciate an email or\u00a0Comment giving details and\/or\u00a0links to relevant materials.<\/p><\/blockquote>\n![\"fjudge\"](\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2006\/08\/fjudgeS.gif\")
\u00a0
\nin the clerk\u2019s blouse\u00a0\u00a0\u00a0 I let her
\nsteal my change\u00a0<\/p>\n
\nmadame justice
\ncatches me staring<\/p>\n\u00a0– from Taboo Haiku: An International Selection<\/em> (Richard Krawiec, ed., Avisson Press, Greensboro, 2005):\u00a0<\/p>\n
\nthe widow\u2019s black lace panties
\ncovered with frost
\n\u00a0<\/p><\/blockquote>\n
\nthe colt\u2019s erection nuzzles
\na daisy
\n\u00a0
\n. . . . . . . . . . . . . . . .. . . . by George Swede
\n\u00a0<\/p>\n
\na belt in the other
\ndads sings a lullaby<\/p><\/blockquote>\n