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.