I don’t pretend to be an expert on every aspect of Kelly Mathis’ prosecution but what I know causes me great concern and should send fearful chill down the spine of every lawyer who gives legal advice to business entities, particularly if that advice is different from the way regulators interpret a statute.
When businesses operate in a heavily regulated environment, they routinely and wisely turn to legal counsel for guidance on how they can operate within the law. This is tricky stuff for lawyers. Often there is no clear legal precedent and lawyers have to engage in analysis that sends them into uncharted waters. The Mathis case is precisely that kind of a case. Keep in mind that all of the legal advice Kelly Mathis gave occurred prior to the legislature changing the law to prohibit the use of computer animations resembling slot machines to reveal prizes.
In a nutshell, under the statutory scheme in place in Florida at the time Mathis provided the advice in question, Florida law permitted businesses to conduct sweepstakes to promote their businesses. There were no restrictions regulating how wining pieces could be revealed but there were, and continue to be, very specific requirements regulating how sweepstakes need to be conducted in order not to run afoul of the anti-gambling statutes.
Businesses routinely hire lawyers to advise them on how to properly conduct sweepstakes. Such promotions are common – McDonald’s Monopoly Pieces Sweepstake being the most common example. So what happens if you create a similar, but computer-based, sweepstake promotion? Your customers come into your store and go to a computer terminal and check to see if they won a prize – the more products they buy, the more opportunities they get to go to the computer terminal and see if they won – exactly the way McDonald’s hands out its Monopoly sweepstake cards expect prizes are revealed on a computer. Does the use of a computer make it no longer a sweepstake? Are your customers now gambling? The answer to most people with a reasonably functioning brain is, “No” – the use of a computer, in at of itself, does not take it outside the sweepstake statute and make it gambling.
But let’s take it another step. You say, “My business is not maximizing this sweepstake promotion because it is not particularly fun.” So to make it more entertaining, you hire a computer programmer to create a template that makes the disclosure of whether or not a sweepstake piece is a winner display using an animation that looks like a slot machine – you know, little pieces of fruit spinning. Everything else remains the same; does the use of the fruity animation make it no longer a sweepstake? Are your customers now gambling? Is your sweepstake now unlawful? The answer, under the statute in place at the time Mathis advised his clients seemed clear – it was still a lawful sweepstake. This is not the equivalent of legal rocket science. The animation used to reveal whether a sweepstake piece is a winner did not make the sweepstake promotion gambling and because the statute did not make such animations unlawful, Mathis reasonably opined the sweepstake promotion was permitted in Florida. For fun, let me play with a statement made by prosecutor in Mathis’ case, “if it looks like a duck and quacks like a duck,” is it no longer a duck because I drew a spinning lemon on its head?
So, back to our story – you go to a lawyer and pay him a lot of money to carefully review the sweepstake statute and that lawyer reviews it and tells you exactly how you must run your computer-based sweepstake in order not to violate the law and he prepares scripts for your employees to use in order to ensure that they don’t cross the line into prohibited behavior. Is he now conspiring with you to violate the gambling laws simply because of you insist on using fruity animations to reveal your prizes?
This is what business lawyers do! They interpret statutes and give advice; often in heavily regulated industries, they give very specific advice so that businesses don’t cross a fine line into prohibited territory. It seems that prosecutors now think that giving very precise advice to businesses so that they stay clear of prohibited behavior is evidence of the lawyer’s participation in criminal behavior! Outrageous! By the way, do lawyers sometimes make mistakes? Do they sometimes give bad advice? You bet (pun intended) — that’s why lawyers, like doctors, carry malpractice insurance. Don’t get me wrong, I’m not suggesting that Mathis gave bad advice here. In fact it sounds like he gave clear, sound advice, and it sounds like his clients followed that advice but unfortunately, it also sounds like regulators cannot distinguish that a computer program which results in something that looks like a slot machine does not a slot machine make (any more that playing Grand Theft Auto mean you are a car thief). And it certainly does not mean that the lawyer providing the advice is a criminal.
So I have a question for our wise, forward thinking state officials who masterminded this prosecution. When a client comes to see a lawyer for business advice and asks that lawyer to interpret a statute and to help write scripts for their employees to ensure that they do not violate the law? Should the lawyer do his job and give an opinion? If asked, are you, the state regulator/prosecutor, willing to review that opinion and weigh in on its correctness? (We all know the answer is, “No”). Later, if you disagree with the lawyer’s interpretation of the statute, are you then going to arrest him, charge him with crime and put him in prison? Because if you are, you sound a lot like a tyrant to me.
Here are a few links to newspaper stories on this prosecution:
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