Senate Bill sb0192e1

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    CS for CS for SB 192                           First Engrossed



  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; defining the terms

  6         "electronic media" and "lawyer referral

  7         service"; requiring advertisements and

  8         unsolicited written communications for legal

  9         services disseminated in Florida by certain

10         entities to comply with the rules regulating

11         The Florida Bar; requiring a specific statement

12         to accompany advertisements for legal services

13         and unsolicited written communications by

14         lawyer-referral services; requiring an

15         affidavit certifying certain information to

16         accompany an advertisement for legal services

17         submitted by an attorney licensed in this

18         state, a business entity organized under the

19         rules regulating The Florida Bar, a lawyer

20         licensed out-of-state, a law firm owned by a

21         lawyer licensed out-of-state, a lawyer-referral

22         service, or a group or legal plan; requiring

23         that such advertisement be filed with The

24         Florida Bar; requiring that such advertisements

25         be accompanied by a sworn statement certifying

26         that the advertisement complies with the

27         standards required for advertisements placed by

28         lawyers licensed in this state; requiring The

29         Florida Bar to retain certain copies of

30         advertisements for a specified period;

31         providing for civil penalties and for


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    CS for CS for SB 192                           First Engrossed



 1         enforcement; providing that false, deceptive,

 2         or misleading advertising of legal services is

 3         an unfair and deceptive trade practice;

 4         specifying that the act is cumulative and does

 5         not repeal any other law, rule, or penalty;

 6         providing an effective date.

 7  

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

 9  vital role in our democracy, and

10         WHEREAS, the lawyers that serve the justice system

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

12  conduct themselves in a manner that fosters respect for the

13  rule of law and the justice system, and

14         WHEREAS, the Supreme Court of Florida through The

15  Florida Bar is the rulemaker for lawyer advertising and has

16  the sole jurisdiction over discipline of members of The

17  Florida Bar, and

18         WHEREAS, the Supreme Court of Florida has adopted rules

19  governing advertising by members of The Florida Bar which are

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

21  judicial system, and

22         WHEREAS, the rules regulating The Florida Bar governing

23  lawyer advertising are recognized as among the most strict in

24  the country, and

25         WHEREAS, the authority of the Florida Legislature and

26  the authority of the Supreme Court of Florida to regulate

27  advertising by corporations and lawyers from outside the state

28  advertising for legal services within the state are

29  coextensive, and

30         WHEREAS, many of these advertising non-Florida lawyers

31  and corporations are accustomed to lower advertising


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

 2  Florida, and

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

 4  lawyer advertising in Florida by non-Florida lawyers and

 5  corporations which falls below the standards set for members

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

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

 8  and confidence in the law, and

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

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

11  advertising, and

12         WHEREAS, the use of fictitious names in advertisements

13  for legal services often creates an unreasonable expectation

14  of results and contains an implied promise of performance;

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

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

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

18  identify the lawyer or firm involved for purposes of

19  accountability to The Florida Bar under its advertising

20  regulatory authority or to identify the proper person to

21  notify and serve with any enforcement action under the Florida

22  Rules of Civil Procedure, NOW, THEREFORE,

23  

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

25  

26         Section 1.  Section 454.37, Florida Statutes, is

27  created to read:

28         454.37  Lawyer advertising.--

29         (1)  As used in this section, the term:

30         (a)  "Electronic media" includes, but is not limited

31  to, computer-accessed, radio, and television advertisements.


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 1         (b)  "Lawyer-referral service" means:

 2         1.  Any person, group of persons, association,

 3  organization, or entity that receives a fee or charge for

 4  referring or causing the direct or indirect referral of a

 5  potential client to a lawyer drawn from a specific group or

 6  panel of lawyers; or

 7         2.  Any group or pooled advertising program operated by

 8  any person, group of persons, association, organization, or

 9  entity wherein the legal services advertisements use a common

10  telephone number and potential clients are referred only to

11  lawyers or law firms participating in the group or pooled

12  advertising program.

13  

14  A not-for-profit lawyer-referral program in which the

15  participating lawyers do not pay a fee or charge of any kind

16  to receive referrals or to belong to the referral panel and

17  undertake the referred matters without expectation of

18  remuneration is not a lawyer-referral service.

19         (2)  Each advertisement or unsolicited written

20  communication for legal services disseminated in this state by

21  or on behalf of a member of The Florida Bar, an authorized

22  business entity properly organized under the rules regulating

23  The Florida Bar, a lawyer licensed to practice in a foreign

24  country or in another state, a law firm owned by a lawyer

25  licensed to practice in a foreign country or in another state,

26  a lawyer-referral service, or a group or prepaid legal plan

27  shall comply with the rules regulating The Florida Bar which

28  govern lawyer advertising as interpreted by The Florida Bar,

29  including filing requirements.

30         (3)  Each advertisement or unsolicited written

31  communication disseminated in this state by or on behalf of a


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 1  lawyer-referral service must contain prominently within the

 2  body of the advertisement or unsolicited written communication

 3  the statement:  "This advertisement is by a lawyer-referral

 4  service. Lawyers pay this service for referrals of prospective

 5  clients who respond to this advertisement. This

 6  lawyer-referral service is not licensed to provide legal

 7  services in Florida."

 8         (4)  Each advertisement for legal services submitted

 9  for publication in the print or electronic media in this state

10  by or on behalf of a member of The Florida Bar, an authorized

11  business entity properly organized under the rules regulating

12  The Florida Bar, a lawyer licensed to practice in a foreign

13  country or in another state, a law firm owned by a lawyer

14  licensed to practice in a foreign country or in another state,

15  a lawyer-referral service, or a group or prepaid legal plan

16  must be filed with The Florida Bar and accompanied by an

17  affidavit signed under oath and affirming under penalty of

18  perjury that the person:

19         (a)  Has read and understands the rules regulating The

20  Florida Bar which govern lawyer advertising;

21         (b)  Acknowledges that he or she is the person

22  responsible for the advertisement;

23         (c)  If the advertisement is by or on behalf of a

24  member of The Florida Bar or an authorized business entity

25  properly organized under the rules regulating The Florida Bar,

26  acknowledges that he or she is the appropriate person for the

27  Supreme Court of Florida to discipline if the advertisement is

28  found to be in violation of the rules regulating The Florida

29  Bar which govern lawyer advertising. If the advertisement is

30  by or on behalf of a lawyer licensed to practice in a foreign

31  country or in another state, a law firm owned by a lawyer


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 1  licensed to practice in a foreign country or in another state,

 2  a lawyer-referral service, or a group or prepaid legal plan,

 3  the advertisement must contain the following statement:  "The

 4  advertiser states that, although not directly subject to the

 5  rules regulating The Florida Bar which govern lawyer

 6  advertising, the advertiser has read and, by submitting this

 7  advertisement, agrees to comply with the rules regulating The

 8  Florida Bar which govern lawyer advertising, including filing

 9  requirements.";

10         (d)  Affirms that the advertisement complies with the

11  rules regulating The Florida Bar which govern lawyer

12  advertising;

13         (e)  Acknowledges that a knowing violation of the rules

14  regulating The Florida Bar which govern lawyer advertising

15  subjects the person to a civil penalty of $1,000 for the first

16  offense and a civil penalty of $10,000 for each subsequent

17  offense; and

18         (f)  Affirms that the person:

19         1.  Has filed the advertisement for review with The

20  Florida Bar in compliance with the rules regulating The

21  Florida Bar which govern lawyer advertising;

22         2.  Is responsible for filing and will file the

23  advertisement for review with The Florida Bar in compliance

24  with the rules regulating The Florida Bar which govern lawyer

25  advertising; or

26         3.  Has determined that the advertisement is exempt

27  from the filing requirement as set forth in the rules

28  regulating The Florida Bar.

29         (5)  The Florida Bar shall retain a copy of each

30  affidavit submitted to The Florida Bar in accordance with

31  subsection (4) for 2 years.


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 1         (6)  A person who violates subsection (2), subsection

 2  (3), or subsection (4) is subject to a civil penalty of $1,000

 3  for the first offense and a civil penalty of $10,000 for each

 4  subsequent offense. Any person who, upon information and

 5  belief, claims a violation of subsection (2), subsection (3),

 6  or subsection (4) may, in a court of competent jurisdiction,

 7  seek to enforce such penalties and seek an injunction against

 8  any person who violates subsection (2), subsection (3), or

 9  subsection (4). As used in this subsection, the term "offense"

10  means a single advertisement published in a single print

11  publication or through a single electronic media outlet,

12  regardless of the number of times or the number of issues it

13  is republished in the same publication or through the same

14  media outlet.

15         (7)  Notwithstanding any other provision of law, it is

16  an unfair and deceptive trade practice for purposes of s.

17  501.204(1) for legal services to be advertised in this state

18  in a false, deceptive, or misleading manner, including, but

19  not limited to, by the use of a name other than the name of

20  the law firm or lawyer that will be providing the services,

21  unless it is a qualified lawyer-referral service, except that

22  a lawyer may advertise under a trade name that is not

23  otherwise false, misleading, or deceptive if that same trade

24  name appears on the lawyer's letterhead, business cards,

25  office sign, and fee contracts and appears with the lawyer's

26  signature on pleadings and other legal documents.

27         (8)  This section is cumulative and does not amend or

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

29  now in effect.

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

31  


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