Senate Bill sb0192c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                            CS for SB 192

    By the Committee on Judiciary; and Senators Campbell and
    Fasano




    590-1709-05

  1                      A bill to be entitled

  2         An act relating to advertising for legal

  3         services; creating s. 454.37, F.S., relating to

  4         advertising for legal services in print or

  5         electronic media; requiring an affidavit

  6         certifying certain information to accompany an

  7         advertisement for legal services submitted by

  8         an attorney licensed in this state or by a

  9         legal plan, organization, or association

10         composed of lawyers licensed in this state and

11         located in this state; requiring other

12         advertisements for legal services to include

13         certain statements; requiring that such

14         advertisements be accompanied by a sworn

15         statement certifying that the advertisement

16         complies with the standards required for

17         advertisements placed by lawyers licensed in

18         this state; providing for civil penalties and

19         for enforcement; requiring publishers of

20         advertisements to send a copy of the

21         advertisement and accompanying document to The

22         Florida Bar and retain certain copies for a

23         specified period; providing an exemption for

24         certain advertisements; providing that false,

25         deceptive, or misleading advertising of legal

26         services is an unfair and deceptive trade

27         practice; specifying that these provisions are

28         cumulative; defining the term "electronic

29         media"; providing an effective date.

30  

31  

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                            CS for SB 192
    590-1709-05




 1         WHEREAS, the rule of law and the justice system play a

 2  vital role in our democracy, and

 3         WHEREAS, the lawyers that serve the justice system

 4  therefore have both a special license and a special duty to

 5  conduct themselves in a manner that fosters respect for the

 6  rule of law and the justice system, and

 7         WHEREAS, the Supreme Court of Florida through The

 8  Florida Bar is the rulemaker for lawyer advertising and has

 9  the sole jurisdiction over discipline of members of The

10  Florida Bar, and

11         WHEREAS, the Supreme Court of Florida has adopted rules

12  governing advertising by members of The Florida Bar which are

13  designed to protect the public's confidence and trust in our

14  judicial system, and

15         WHEREAS, the rules regulating The Florida Bar governing

16  lawyer advertising are recognized as among the most strict in

17  the country, and

18         WHEREAS, the authority of the Florida Legislature and

19  the authority of the Supreme Court of Florida to regulate

20  advertising by corporations and lawyers from outside the state

21  advertising for legal services within the state are

22  coextensive, and

23         WHEREAS, many of these advertising non-Florida lawyers

24  and corporations are accustomed to lower advertising

25  standards, or no standards at all, when advertising outside

26  Florida, and

27         WHEREAS, as a result, there is a significant amount of

28  lawyer advertising in Florida by non-Florida lawyers and

29  corporations which falls below the standards set for members

30  of The Florida Bar and thereby holds the law and lawyers up to

31  

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                            CS for SB 192
    590-1709-05




 1  ridicule and diminishes the public's trust in, respect for,

 2  and confidence in the law, and

 3         WHEREAS, the Legislature also has a duty to see that

 4  the public is protected from false, deceptive, or dishonest

 5  advertising, and

 6         WHEREAS, the use of fictitious names in advertisements

 7  for legal services often creates an unreasonable expectation

 8  of results and contains an implied promise of performance;

 9  fails to disclose to the public the lawyers that would provide

10  the services, and, therefore, prevents the public from making

11  an informed decision in selecting an attorney; and fails to

12  identify the lawyer or firm involved for purposes of

13  accountability to The Florida Bar under its advertising

14  regulatory authority or to identify the proper person to

15  notify and serve with any enforcement action under the Florida

16  Rules of Civil Procedure, NOW, THEREFORE,

17  

18  Be It Enacted by the Legislature of the State of Florida:

19  

20         Section 1.  Section 454.37, Florida Statutes, is

21  created to read:

22         454.37  Attorney advertising.--

23         (1)  Each advertisement for legal services which is

24  submitted by a member of The Florida Bar; by a legal plan,

25  organization, or association that is composed entirely of

26  members of The Florida Bar and located in this state; or by a

27  combination of such legal plans, organizations, or

28  associations that are located in this state, for publication

29  in this state in print or electronic media, must be

30  accompanied by an affidavit signed under oath by the lawyer

31  whose services are being advertised or, in the case of a legal

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                            CS for SB 192
    590-1709-05




 1  plan, organization, or association, or a combination thereof,

 2  a member lawyer whose services are being advertised, and

 3  affirming, under penalty of perjury, that he or she:

 4         (a)  Is a member in good standing of The Florida Bar;

 5         (b)  Is presently practicing law in this state;

 6         (c)  Has read and understands the rules regulating The

 7  Florida Bar which govern lawyer advertising;

 8         (d)  Represents, if the advertising entity is a legal

 9  plan, organization, or association, or a combination thereof,

10  that the entity is composed entirely of members of The Florida

11  Bar and is located in this state;

12         (e)  Acknowledges that he or she is the person

13  responsible for the advertisement and the appropriate person

14  for the Supreme Court of Florida to discipline if the

15  submitted advertisement is found to be in violation of the

16  rules of The Florida Bar governing lawyer advertising; and

17         (f)  States one of the following:

18         1.  The person has filed the advertisement for review

19  with The Florida Bar;

20         2.  The person is responsible for filing and will file

21  the advertisement for review with The Florida Bar in

22  compliance with the rules regulating The Florida Bar; or

23         3.  The advertisement is exempt from the filing

24  requirement as set forth in the rules regulating The Florida

25  Bar.

26         (2)  For advertisements for legal services or for

27  lawyer-referral services which are submitted for publication

28  in this state in print or electronic media and to which

29  subsection (1) does not apply:

30         (a)  Each advertisement must comply with the rules that

31  govern lawyer advertising by members of The Florida Bar as set

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                            CS for SB 192
    590-1709-05




 1  forth in the rules regulating The Florida Bar and as

 2  interpreted by The Florida Bar.

 3         (b)  Each advertisement submitted by a lawyer-referral

 4  service for publication must contain prominently within the

 5  body of the advertisement the statement:  "This advertisement

 6  is by a lawyer-referral service. Attorneys pay this service

 7  for referrals of potential clients who respond to this

 8  advertisement. This lawyer-referral service is not licensed to

 9  provide legal services in Florida." The provisions of this

10  paragraph do not apply to pro bono lawyer-referral services.

11         (c)  Each advertisement submitted for publication

12  pursuant to this subsection must be accompanied by the

13  following statement signed under oath:  "The advertiser states

14  that, although not directly subject to the rules regulating

15  The Florida Bar which govern advertising for legal services,

16  the advertiser has read and, by submitting this advertisement,

17  agrees to comply with the rules governing advertising by

18  members of The Florida Bar, and that the submitted

19  advertisement complies with those rules as interpreted by The

20  Florida Bar. The advertiser further acknowledges that a

21  knowing violation of those rules shall subject the advertiser

22  to a civil penalty of $1,000 for the first offense and a civil

23  penalty of $10,000 for each subsequent offense."

24  

25  A person who violates this subsection is liable for a civil

26  penalty of $1,000 for the first offense and a civil penalty of

27  $10,000 for each subsequent offense. The Florida Bar or the

28  Attorney General may, in a court of competent jurisdiction,

29  seek to enforce such penalties and seek an injunction against

30  any person who violates this subsection. For purposes of this

31  subsection, the term "offense" means a single advertisement

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                            CS for SB 192
    590-1709-05




 1  published in a single print publication or through a single

 2  electronic media outlet, regardless of the number of times or

 3  the number of issues it is republished in the same publication

 4  or through the same media outlet.

 5         (3)  Within 30 days after acceptance for publication of

 6  an advertisement to which this section applies, the publisher

 7  shall send a copy of the advertisement and the original

 8  affidavit required pursuant to subsection (1) or the original

 9  statement required by paragraph (2)(c), as applicable, to The

10  Florida Bar for review. The publisher shall retain a copy of

11  the affidavit or statement for 2 years. The entity submitting

12  the advertisement for publication shall provide to the

13  publisher a copy of the advertisement for this purpose. This

14  subsection does not preclude an advertiser from submitting an

15  advertisement to The Florida Bar for review before submitting

16  it for publication.  The requirement for a publisher to submit

17  an advertisement and affidavit does not apply if the affidavit

18  provided under subsection (1) states that the advertisement is

19  exempt from the filing requirements as set forth in the rules

20  regulating The Florida Bar.

21         (4)  Notwithstanding any other provision of law to the

22  contrary, it is an unfair and deceptive trade practice for

23  purposes of s. 501.204(1) for legal services to be advertised

24  in this state in a false, deceptive, or misleading manner,

25  including, but not limited to, by the use of a name other than

26  the name of the law firm or lawyer that will be providing the

27  services, unless it is a qualified lawyer-referral service,

28  except that a lawyer may advertise under a trade name that is

29  not otherwise false, misleading, or deceptive if the same name

30  appears on the lawyer's letterhead, business cards, office

31  

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                            CS for SB 192
    590-1709-05




 1  sign, or fee contracts and appears with the lawyer's signature

 2  on pleadings and other legal documents.

 3         (5)  This section is cumulative and does not amend or

 4  repeal any other valid law, code, ordinance, rule, or penalty

 5  now in effect.

 6         (6)  As used in this section, the term "electronic

 7  media" includes, but is not limited to, computer-accessed

 8  communications.

 9         Section 2.  This act shall take effect October 1, 2005.

10  

11          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
12                         Senate Bill 192

13                                 

14  --   This committee substitute requires certain legal entities
         located in Florida, who also publish in-state through
15       print or electronic media, to provide to the publisher
         specific affidavits with each advertisement.
16  
    --   Regarding out-of-state legal service providers or
17       lawyer-referral services advertising in-state, a signed,
         sworn statement must accompany all advertisements
18       submitted for publication through print or electronic
         media, and these advertisements are subject to Florida
19       Bar rules on lawyer advertising. Lawyer referral services
         are required to include a prominent disclosure in all
20       advertisements.

21  --   Certain legal services advertisers and lawyer referral
         services are subject to $1,000 in civil fines for a first
22       offense and $10,000 for each subsequent offense.

23  --   Within 30 days after acceptance for publication, a
         publisher is required to send a copy of the advertisement
24       and original affidavit or statement to the Florida Bar
         and to retain a copy for two years, unless the affidavit
25       states that the advertisement is exempt from filing with
         the Florida Bar.
26  
    --   Legal services that are advertised in a false, deceptive,
27       or misleading manner are subject to unfair and deceptive
         trade practice penalties.
28  

29  

30  

31  

                                  7

CODING: Words stricken are deletions; words underlined are additions.