Florida Senate - 2012 SB 134 By Senator Margolis 35-00021-12 2012134__ 1 A bill to be entitled 2 An act relating to the advertising of legal and 3 medical referral services; providing definitions; 4 requiring that advertising from a medical or lawyer 5 referral service for services related to motor vehicle 6 accidents comply with certain requirements regarding 7 content; requiring that advertisements or unsolicited 8 written communications from certain legal referral 9 services for services related to motor vehicle 10 accidents comply with the Supreme Court of Florida’s 11 Rules Regulating The Florida Bar; requiring that 12 published advertisements from a lawyer referral 13 service be filed with The Florida Bar along with an 14 affidavit meeting certain criteria; requiring 15 advertisements or unsolicited written communications 16 from a lawyer referral service to display certain 17 information; requiring that a referring person or 18 entity provide certain financial information to the 19 person referred to a lawyer, medical clinic, or health 20 care provider; prohibiting a lawyer referral service 21 from conditioning participation in the service based 22 on certain criteria; prohibiting a medical referral 23 service from making referrals only to a medical clinic 24 or health care provider in which the referral service 25 has a financial or ownership interest; providing civil 26 and criminal penalties for violations relating to the 27 advertising of legal and medical referral services; 28 providing for relief to persons injured by a violation 29 of the act, including attorney’s fees and costs; 30 providing an effective date. 31 32 WHEREAS, there have been numerous complaints concerning 33 misleading and deceptive advertisements directed to motor 34 vehicle accident victims by entities who advertise that they are 35 available to refer motor vehicle accident victims to lawyers and 36 health care providers, and 37 WHEREAS, it is important for the public to have an absolute 38 trust in public safety officers and officials, including, but 39 not limited to, firefighters, police officers, and paramedics, 40 and, as such, it is in the best interest and welfare of the 41 state that the image, representation, and likeness of public 42 safety officers and officials not be used in a deceptive and 43 misleading manner to falsely misrepresent to the public that 44 such officers and officials are recommending that the public 45 call a help line for accident victims which is the phone number 46 for an auto accident clinic or an entity in business to refer 47 motor vehicle accident victims to a specific medical clinic, 48 health care provider, lawyer, or law firm, and 49 WHEREAS, the public has been misled and deceived by medical 50 clinics, health care providers, and entities claiming to be a 51 medical referral service or lawyer referral service that 52 advertises using a catchy phone number or slogan and represents 53 itself as an “Ask Us” informational service for motor vehicle 54 accident victims, without disclosing that it is actually a front 55 for a specific medical clinic, health care provider, lawyer, or 56 law firm, and 57 WHEREAS, the public should not be deceived and misled by 58 false or deceptive advertising that is for the purpose of 59 steering motor vehicle accident victims to a specific medical 60 clinic, health care provider, lawyer, or law firm, and 61 WHEREAS, lawyer advertisements for services related to 62 motor vehicle accidents are regulated by the Supreme Court of 63 Florida’s Rules Regulating The Florida Bar; however, those rules 64 are not directly applicable to non-lawyer entities that 65 advertise to motor vehicle accident victims and refer those 66 victims to lawyers or law firms, and 67 WHEREAS, because the Supreme Court of Florida’s Rules 68 Regulating The Florida Bar concerning lawyer advertisements are 69 for the express purpose of protecting the public from misleading 70 or deceptive advertising by lawyers only, it is necessary to 71 adopt the following broader approach to the protection of the 72 public from false and deceptive advertising to motor vehicle 73 accident victims, NOW, THEREFORE, 74 75 Be It Enacted by the Legislature of the State of Florida: 76 77 Section 1. As used in this act, the term: 78 (1) “Electronic media” includes, but is not limited to, 79 computer-accessed, radio, and television advertisements. 80 (2) “Lawyer referral service” means any group or pooled 81 advertising program operated by any person, group of persons, 82 association, organization, or entity whose advertisements for 83 legal services use a common telephone number, a uniform resource 84 locator (URL), or other form of contact and whose clients or 85 prospective clients are referred only to lawyers or law firms 86 participating in the group or pooled advertising program. A not 87 for-profit referral program in which participating lawyers do 88 not pay a fee or charge of any kind to receive referrals or to 89 belong to the referral panel and undertake the referred matters 90 without expectation of remuneration is not a lawyer referral 91 service for purposes of this act. A lawyer referral service for 92 or operated by a voluntary bar association or legal aid program 93 recognized by The Florida Bar is exempt from this act. 94 (3) “Medical referral service” means any group or pooled 95 advertising program operated by any person, group of persons, 96 association, organization, or entity whose advertisements for 97 medical services use a common telephone number, a uniform 98 resource locator (URL), or other form of contact and whose 99 patients or prospective patients are referred only to medical 100 clinics or health care providers participating in the group or 101 pooled advertising program. 102 Section 2. All advertising by or on behalf of a medical or 103 lawyer referral service to the general public for services 104 related to injuries from a motor vehicle accident must comply 105 with the following: 106 (1) If an advertisement includes any reference to referring 107 a person to a medical clinic, health care provider, lawyer, or 108 law firm, the advertisement must clearly disclose the county or 109 counties in which the medical clinic, health care provider, 110 lawyer, or law firm to whom the referral will be made has a bona 111 fide office from which the services will be provided. 112 (2) An advertisement may not include any false, misleading, 113 or deceptive communication. A communication violates this 114 subsection if it: 115 (a) Contains a material misrepresentation of fact. 116 (b) Fails to disclose material information necessary to 117 prevent the information supplied from being false or misleading. 118 (c) Claims facts that cannot be substantiated. 119 (d) Contains any reference to past successes or results 120 obtained which would deceive the public by creating unjustified 121 expectations. For purposes of this act, a disclaimer that 122 “results will vary depending on the specific facts” is required 123 for any reference to past successes or results, and such 124 disclaimer shall be communicated in the exact same manner as any 125 reference to past successes or results. 126 (e) Contains a reference to monetary amounts that create 127 unjustified expectations, such as using deceptive statements 128 similar to “Don’t make a million-dollar mistake.” or “You may be 129 entitled to $100,000.” when there is no factual basis to suggest 130 such monetary amounts to the general public. 131 (f) Promises or suggests a specific result that cannot be 132 guaranteed, including promising or suggesting a monetary result 133 that cannot be guaranteed. 134 (g) Contains any testimonial by an actor, unless such 135 testimonial includes a disclaimer, communicated in the exact 136 same manner as the testimonial, that the testimonial is not a 137 true story and the person providing the testimonial is an actor 138 and not a real person. 139 (h) Contains any testimonial by a real person, unless such 140 person actually obtained the services of the person or entity 141 advertising the services, and the testimonial is completely 142 truthful and verifiable and includes the disclaimer that 143 “results may vary depending on the specific facts.” Such 144 disclaimer shall be communicated in the exact same manner as the 145 testimonial by the real person. 146 (i) Contains any verbal or visual reference, from the past 147 or in the present, to any connection between any person in 148 public safety, or purporting to be in public safety, or any 149 public safety entity that has any connection of any kind to the 150 person or entity advertising the services to motor vehicle 151 accident victims. This prohibition includes the use of any 152 visual or verbal reference to any actor purporting to be 153 connected in any way to a public safety officer or public safety 154 entity. This prohibition includes the use of any public safety 155 badge, emblem, uniform, hat, or vehicle, or the use of any 156 replica of any such item. An exception to this prohibition is 157 authorized if the person in charge of a public safety entity 158 gives express written consent for the use of the reference to 159 such agency in the advertisement or communication. 160 Section 3. An advertisement or unsolicited written 161 communication for legal services related to motor vehicle 162 accidents disseminated in this state by or on behalf of any 163 lawyer referral service, other than a lawyer referral service 164 for or operated by a voluntary bar association or legal aid 165 program recognized by The Florida Bar, must comply with the 166 Supreme Court of Florida’s Rules Regulating The Florida Bar 167 pertaining to lawyer referral and advertising services as if 168 those services were provided by members of The Florida Bar, 169 including filing requirements. 170 Section 4. (1) Each advertisement by or on behalf of a 171 lawyer referral service related to motor vehicle accidents which 172 is submitted for publication in the print or electronic media or 173 on a billboard in this state must at the same time be filed with 174 The Florida Bar, accompanied by an affidavit signed under oath 175 by the owner, shareholder, principal, or officer of the referral 176 service affirming under penalty of perjury that the person: 177 (a) Has read and understands the Supreme Court of Florida’s 178 Rules Regulating The Florida Bar which pertain to lawyer 179 referral and advertising services; 180 (b) Acknowledges that he or she is the person responsible 181 for the advertisement and for the adverse consequences of any 182 prohibited advertising, including the penalties provided under 183 this act; 184 (c) Affirms that the advertisement complies with the 185 Supreme Court of Florida’s Rules Regulating The Florida Bar 186 which govern lawyer advertising; 187 (d) Acknowledges that a knowing violation of the Supreme 188 Court of Florida’s Rules Regulating The Florida Bar which govern 189 lawyer advertising subjects the person to a civil penalty of 190 $1,000 for the first offense and a civil penalty of $5,000 for 191 each subsequent offense; and 192 (e) Affirms that the person: 193 1. Has filed the advertisement for review with The Florida 194 Bar in compliance with the Supreme Court of Florida’s Rules 195 Regulating The Florida Bar which govern lawyer advertising; 196 2. Is responsible for filing and will file the 197 advertisement for review with The Florida Bar in compliance with 198 the Supreme Court of Florida’s Rules Regulating The Florida Bar 199 which govern lawyer advertising; or 200 3. Has determined that the advertisement is exempt from the 201 filing requirement as set forth in the Supreme Court of 202 Florida’s Rules Regulating The Florida Bar which govern lawyer 203 advertising. 204 (2) A copy of the affidavit must be submitted to The 205 Florida Bar and maintained by the referral service for 2 years. 206 Section 5. An advertisement or unsolicited written 207 communication disseminated in this state by or on behalf of a 208 lawyer referral service for services relating to motor vehicle 209 accidents must contain prominently within the body of the 210 advertisement or unsolicited written communication the 211 statement: “This advertisement is by a lawyer referral service. 212 Lawyers may pay this service for referrals of prospective 213 clients who respond to this advertisement. This lawyer referral 214 service is not licensed to provide legal services in Florida.” 215 Section 6. When a person or entity that advertises the 216 service of referring motor vehicle accident victims to a medical 217 clinic, health care provider, lawyer, or law firm refers a 218 person to a medical clinic, health care provider, lawyer, or law 219 firm, the referring person or entity must provide the person 220 referred with a written disclosure that clearly and 221 unambiguously states any financial interest or financial 222 relationship that the referring person or entity has with the 223 medical clinic, health care provider, lawyer, or law firm to 224 which the referral is made. A copy of the written disclosure 225 must be submitted to The Florida Bar and maintained by the 226 referral service for 2 years. 227 Section 7. A lawyer referral service may not require a 228 participating lawyer or law firm to recommend the services of a 229 particular medical clinic, health care provider, or other 230 professional as a condition of participation in the referral 231 service. 232 Section 8. A medical referral service may not make 233 referrals only to a medical clinic or health care provider in 234 which the medical referral service has any financial or 235 ownership interest. 236 Section 9. (1)(a) A person or entity that violates this act 237 shall forfeit any monetary amount received as a result of an 238 advertisement that violates this act. 239 (b) A person or entity that violates this act is subject to 240 a civil penalty of $1,000 for the first offense and $5,000 for 241 each subsequent offense. 242 (c) Any sums collected as a civil penalty under this 243 subsection shall be deposited into the State Courts Revenue 244 Trust Fund. 245 (2) A person who claims a violation of this act may file a 246 complaint with the Department of Agriculture and Consumer 247 Services. If the department fails to initiate legal proceedings 248 within 90 days after receiving the complaint, the person who 249 filed the complaint may, in a court of competent jurisdiction, 250 seek to enforce such penalties and may seek an injunction 251 against the person in violation of this act. The right of a 252 person to initiate court proceedings is limited to the person 253 who first filed the complaint with the department on each 254 individual violation. 255 (3) A person who files a court action pursuant to this act 256 may recover attorney’s fees and costs if successful in obtaining 257 an injunction or penalties, or both, and may recover 25 percent 258 of all moneys paid as a civil penalty as a result of such 259 person’s action to enforce this act, whether in court or through 260 the actions of the department. 261 (4) Each prohibited advertisement that appears on a 262 billboard, is published in print media, airs on radio or 263 television, or appears on a computer website controlled by the 264 party advertising the services constitutes a separate offense. 265 Section 10. After an adjudication of guilt is entered for a 266 first offense of violating this act, any subsequent knowing 267 violation of this act is a misdemeanor of the second degree, 268 punishable as provided in s. 775.082 or s. 775.083, Florida 269 Statutes. A person who violates section 2 of this act commits an 270 unfair or deceptive trade practice as defined in part II of 271 chapter 501, Florida Statutes, and is subject to the penalties 272 and remedies provided therein. Further, any person injured by a 273 violation of this act may bring an action for recovery of 274 damages. A judgment in favor of the person shall be for actual 275 damages, and the losing party is liable for the person’s 276 reasonable attorney’s fees and costs. 277 Section 11. This act is cumulative and does not amend or 278 repeal any other valid law, code, ordinance, rule, or penalty in 279 effect on July 1, 2012. 280 Section 12. This act shall take effect July 1, 2012.