CS/HB 1237

1
A bill to be entitled
2An act relating to legal and medical referral service
3advertising; providing definitions; requiring advertising
4from a medical or lawyer referral service related to motor
5vehicle accidents to comply with certain requirements
6regarding content; requiring advertisements or unsolicited
7written communications from certain legal referral
8services related to motor vehicle accidents to comply with
9the Supreme Court of Florida's Rules Regulating The
10Florida Bar; requiring that published advertisements from
11a lawyer referral service be filed with The Florida Bar
12along with an affidavit meeting certain criteria;
13requiring advertisements or unsolicited written
14communications from a lawyer referral service to display
15certain information; requiring a referring person or
16entity to provide certain financial information to the
17person referred to a lawyer or health care provider;
18prohibiting a lawyer referral service to condition
19membership based on certain criteria; prohibiting a
20medical referral service from making referrals only to a
21medical clinic or health care provider in which it has a
22financial or ownership interest; providing civil and
23criminal penalties for violations relating to legal and
24medical referral advertising and relief to persons
25affected; providing an effective date.
26
27     WHEREAS, there have been numerous complaints concerning
28misleading and deceptive advertisements directed to motor
29vehicle accident victims by entities who advertise they are
30available to refer motor vehicle accident victims to lawyers and
31health care providers, and
32     WHEREAS, it is important for the public to have an absolute
33trust in public safety officers and officials, including but not
34limited to, firefighters, police officers, and paramedics, and,
35as such, it is in the best interest and welfare of the state
36that the image, representation, and likeness of public safety
37officers and officials not be used in a deceptive and misleading
38manner to falsely misrepresent to the public that such officers
39and officials are recommending that the public call a help-line
40for accident victims which is the phone number for either an
41auto accident clinic or an entity in business to refer motor
42vehicle accident victims to a specific health care provider
43clinic, lawyer, or law firm, and
44     WHEREAS, the public has been misled and deceived by health
45care provider clinics and entities claiming to be medical
46referral services and lawyer referral services that advertise
47using a catchy phone number or slogan and who represent
48themselves as an "Ask Us" informational service for motor
49vehicle accident victims, without disclosing they are really a
50front for a specific health care provider clinic, lawyer, or law
51firm, and
52     WHEREAS, the public should not be deceived and misled by
53false or deceptive advertising that is for the purpose of
54steering motor vehicle accident victims to a specific health
55care provider, lawyer, or law firm, and
56     WHEREAS, lawyer advertisements for motor vehicle accidents
57are regulated by the Supreme Court of Florida's Rules Regulating
58The Florida Bar; however, those rules are not directly
59applicable to non-lawyer entities that advertise to motor
60vehicle accident victims and refer those victims to lawyers or
61law firms, and
62     WHEREAS, because the Supreme Court of Florida's Rules
63Regulating The Florida Bar concerning lawyer advertisements are
64for the express purpose of protecting the public from misleading
65or deceptive advertising by lawyers only, it is necessary to
66adopt the following broader approach to the protection of the
67public from false and deceptive advertising to motor vehicle
68accident victims, NOW, THEREFORE,
69
70Be It Enacted by the Legislature of the State of Florida:
71
72     Section 1.  As used in this act, the term:
73     (1)  "Electronic media" includes, but is not limited to,
74computer-accessed, radio, and television advertisements.
75     (2)  "Lawyer referral service" means any group or pooled
76advertising program operated by any person, group of persons,
77association, organization, or entity whose legal services
78advertisements use a common telephone number, a uniform resource
79locator (URL), or other form of contact and whose clients or
80prospective clients are referred only to lawyers or law firms
81participating in the group or pooled advertising program. A not-
82for-profit referral program in which participating lawyers do
83not pay a fee or charge of any kind to receive referrals or to
84belong to the referral panel and undertake the referred matters
85without expectation of remuneration is not considered a lawyer
86referral service for purposes of this act. A lawyer referral
87service for or operated by a voluntary bar association or legal
88aid program recognized by The Florida Bar is exempt from the
89provisions of this act related to the regulation of legal and
90medical referral services advertising to motor vehicle accident
91victims.
92     (3)  "Medical referral services" means any group or pooled
93advertising program operated by any person, group of persons,
94association, organization, or entity whose legal and medical
95services advertisements use a common telephone number, a uniform
96resource locator (URL), or other form of contact and whose
97patients or prospective patients are referred only to medical
98clinics or health care providers participating in the group or
99pooled advertising program.
100     Section 2.  All advertising by or on behalf of a medical or
101lawyer referral service to the general public for services
102related to injuries from a motor vehicle accident must comply
103with the following:
104     (1)  If an advertisement includes any reference to
105referring a person to a health care provider, lawyer, or law
106firm, the advertisement must clearly disclose the county or
107counties in which the health care provider, lawyer, or law firm
108to whom the referral will be made has a bona fide office from
109which the services will be provided;
110     (2)  Each advertisement is prohibited from including any
111false, misleading, or deceptive communication. A communication
112violates this subsection if it:
113     (a)  Contains a material misrepresentation of fact.
114     (b)  Fails to disclose material information necessary to
115prevent the information supplied from being false or misleading.
116     (c)  Claims facts that cannot be substantiated.
117     (d)  Contains any reference to past successes or results
118obtained that would deceive the public into having unjustified
119expectations. For purposes of this act, a disclaimer that
120"results will vary depending on the specific facts" is required
121for any reference to past successes or results, and such
122disclaimer shall be communicated in the exact same manner as any
123reference to past successes or results.
124     (e)  Contains a reference to monetary amounts that create
125unjustified expectations, such as using deceptive statements
126like "Don't make a million dollar mistake." or "You may be
127entitled to $100,000." when there is no factual basis to suggest
128such monetary amounts to the general public.
129     (f)  Promises or suggests a specific result that cannot be
130guaranteed, including promising or suggesting a monetary result
131that cannot be guaranteed.
132     (g)  Contains any testimonial by an actor, unless such
133testimonial includes a disclaimer, communicated in the exact
134same manner as the testimonial, that the testimonial is not a
135true story and the person providing the testimonial is an actor
136and not a real person.
137     (h)  Contains any testimonial by a real person, unless such
138person actually obtained the services of the person or entity
139advertising the services, and the testimonial is completely
140truthful and verifiable, and includes the disclaimer that
141"results may vary depending on the specific facts." Such
142disclaimer shall be communicated in the exact same manner as the
143real person testimonial.
144     (i)  Contains any verbal or visual reference, from the past
145or in the present, to any connection between any person in
146public safety, or purporting to be in public safety, or any
147public safety entity that has any connection of any kind to the
148person or entity advertising the services to motor vehicle
149accident victims. This prohibition includes the use of any
150visual or verbal reference to any actor purporting to be
151connected in any way to a public safety officer or public safety
152entity. This prohibition includes the use of any public safety
153badge, emblem, uniform, hat, vehicle, or any replica of any such
154item. An exception to this prohibition is when the person in
155charge of a public safety entity gives express written consent
156to the use of the reference to such agency in the advertisement
157or communication.
158     Section 3.  An advertisement or unsolicited written
159communication for legal services related to motor vehicle
160accidents disseminated in this state by or on behalf of any
161lawyer referral service, other than a lawyer referral service
162for or operated by a voluntary bar association or legal aid
163program recognized by The Florida Bar, must comply with the
164Supreme Court of Florida's Rules Regulating The Florida Bar
165pertaining to lawyer referral and advertising services as if
166those services were provided by members of The Florida Bar,
167including filing requirements.
168     Section 4.  (1)  Each advertisement by or on behalf of a
169lawyer referral service related to motor vehicle accidents that
170is submitted for publication in the print or electronic media or
171on a billboard in this state must at the same time be filed with
172The Florida Bar, accompanied by an affidavit signed under oath
173by the owner, shareholder, principal, or officer of the referral
174service affirming under penalty of perjury that the person:
175     (a)  Has read and understands the Supreme Court of
176Florida's Rules Regulating The Florida Bar, which pertain to
177lawyer referral and advertising services;
178     (b)  Acknowledges that he or she is the person responsible
179for the advertisement and for the adverse consequences of any
180prohibited advertising, including those within this act;
181     (c)  Affirms that the advertisement complies with the
182Supreme Court of Florida's Rules Regulating The Florida Bar,
183which govern lawyer advertising;
184     (d)  Acknowledges that a knowing violation of the Supreme
185Court Florida's Rules Regulating The Florida Bar, which govern
186lawyer advertising, subjects the person to possible criminal
187penalties and to a civil penalty of $1,000 for the first offense
188and a civil penalty of $5,000 for each subsequent offense; and
189     (e)  Affirms that the person:
190     1.  Has filed the advertisement for review with The Florida
191Bar in compliance with the Supreme Court of Florida's Rules
192Regulating The Florida Bar, which govern lawyer advertising;
193     2.  Is responsible for filing and will file the
194advertisement for review with The Florida Bar in compliance with
195the Supreme Court of Florida's Rules Regulating The Florida Bar,
196which govern lawyer advertising; or
197     3.  Has determined that the advertisement is exempt from
198the filing requirement as set forth in the Supreme Court of
199Florida's Rules Regulating The Florida Bar, which govern lawyer
200advertising.
201     (2)  A copy of the affidavit must be submitted to The
202Florida Bar and maintained by the referral services for 2 years.
203     Section 5.  An advertisement or unsolicited written
204communication disseminated in this state by or on behalf of a
205lawyer referral service relating to motor vehicle accidents must
206contain prominently within the body of the advertisement or
207unsolicited written communication the statement: "This
208advertisement is by a lawyer referral service. Lawyers may pay
209this service for referrals of prospective clients who respond to
210this advertisement. This lawyer referral service is not licensed
211to provide legal services in Florida."
212     Section 6.  When a person or entity that advertises the
213service of referring motor vehicle accident victims to a health
214care provider, lawyer, or law firm refers a person to a health
215care provider, lawyer, or law firm, the referring person or
216entity must provide the person referred with a written
217disclosure that clearly and unambiguously states any financial
218interest or financial relationship that the referring person or
219entity has with the health care provider, lawyer, or law firm to
220whom a referral is made. A copy of the written disclosure must
221be submitted to The Florida Bar and maintained by the referral
222service for 2 years.
223     Section 7.  A lawyer referral service may not require a
224participating lawyer or law firm to recommend the services of a
225particular health care provider or other professional as a
226condition of participation in the referral service.
227     Section 8.  A medical referral service may not make
228referrals only to a medical clinic or health care provider with
229which the medical referral service has any financial or
230ownership interest.
231     Section 9.  (1)(a)  A person or entity that violates this
232act shall forfeit any monetary amount received as a result of an
233advertisement that violates this act.
234     (b)  A person or entity that violates this act is subject
235to a civil penalty of $1,000 for the first offense and $5,000
236for each subsequent offense.
237     (c)  Any sums collected as a civil penalty under this
238subsection shall be deposited in the State Courts Revenue Trust
239Fund.
240     (2)  A person who claims a violation of this act may file a
241complaint with the Department of Agriculture and Consumer
242Services. If the department fails to initiate legal proceedings
243within 90 days after receiving the complaint, the person who
244filed the complaint may, in a court of competent jurisdiction,
245seek to enforce such penalties and may seek an injunction
246against the person in violation of this act. The right of a
247person to initiate court proceedings is limited to the person
248who first filed the complaint with the department on each
249individual violation.
250     (3)  A person who files a court action pursuant to this act
251may recover attorney's fees and costs if successful in obtaining
252an injunction, penalties, or both and may recover 25 percent of
253all moneys paid as a civil penalty as a result of such person's
254action to enforce this act, whether in court or through the
255actions of the department.
256     (4)  Each prohibited advertisement that appears on a
257billboard, is published in print media, airs on radio or
258television, or appears on a computer website controlled by the
259party advertising the services constitutes a separate offense.
260     Section 10.  After a court finds that a person violated
261this act, any subsequent knowing violation is a misdemeanor of
262the second degree, punishable as provided in s. 775.082 or s.
263775.083. A person who violates section 2 of this act commits an
264unfair or deceptive trade practice as defined in part II of
265chapter 501 and is subject to the penalties and remedies
266provided therein. Further, any person injured by a violation of
267this act may bring an action for recovery of damages. A judgment
268in favor of the person shall be for actual damages, and the
269losing party is liable for the person's reasonable attorney's
270fees and costs.
271     Section 11.  This act is cumulative and does not amend or
272repeal any other valid law, code, ordinance, rule, or penalty
273now in effect.
274     Section 12.  This act shall take effect July 1, 2011.


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