Florida Senate - 2020 SB 1288
By Senator Wright
14-01664-20 20201288__
1 A bill to be entitled
2 An act relating to the solicitation of legal services;
3 creating s. 501.2106, F.S.; defining terms;
4 prohibiting legal advertisements from containing
5 certain terminology or failing to include specified
6 disclosures; providing that a person who places or
7 sponsors an advertisement in violation of certain
8 provisions commits a deceptive and unfair trade
9 practice, subject to the penalties and remedies of the
10 Florida Deceptive and Unfair Trade Practices Act;
11 creating s. 877.025, F.S.; defining terms; prohibiting
12 certain use, sale, or transfer of protected health
13 information without specified authorization for
14 purposes of soliciting legal services; providing that
15 a person who uses, sells, or transfers protected
16 health information in violation of the act commits a
17 deceptive and unfair trade practice, subject to the
18 penalties and remedies of the Florida Deceptive and
19 Unfair Trade Practices Act; providing criminal
20 penalties for willful and knowing violations and
21 enhanced penalties for violations committed for
22 financial gain; providing applicability; providing
23 effective dates.
24
25 WHEREAS, unethical practices in legal advertising have
26 become pervasive throughout this state and contribute to the
27 exploitation of persons vulnerable to deceptive or otherwise
28 misleading statements in legal advertisements, particularly
29 those suffering from the infirmities of aging, and this state
30 has a substantial interest in curtailing these unethical
31 practices, and
32 WHEREAS, although section 15 of Article V of the State
33 Constitution vests exclusive jurisdiction in the Florida Supreme
34 Court to regulate the admission of persons to the practice of
35 law and to discipline those persons admitted, and although the
36 rules regulating The Florida Bar provide current restrictions on
37 legal advertising, the pervasive extent of these unethical
38 practices necessitates that the Legislature exercise the state’s
39 police power to further curtail these unethical practices, and
40 WHEREAS, this act’s restrictions on legal advertising will
41 directly and materially curtail these unethical practices and
42 protect vulnerable populations, and
43 WHEREAS, this act’s restrictions on legal advertising are
44 narrowly drawn and tailored specifically to curtail these
45 unethical practices, NOW, THEREFORE,
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Section 501.2106, Florida Statutes, is created
50 to read:
51 501.2106 Legal advertising; deceptive and unfair trade
52 practices.—
53 (1) As used in this section, the term:
54 (a) “Legal advertisement” means a paid solicitation for
55 legal services which is directed to the public through
56 television; radio; the Internet, including a domain name; a
57 newspaper or other periodical; an outdoor advertising sign; or
58 another written, electronic, or recorded communication.
59 (b) “Person” has the same meaning as provided in s. 1.01
60 and includes an attorney or law firm or an employee or agent
61 thereof.
62 (2) A person who submits or approves the submittal of a
63 legal advertisement for publication, broadcast, or
64 dissemination, or who pays for or otherwise sponsors a legal
65 advertisement, commits a deceptive and unfair trade practice
66 under this part if the advertisement, once published, broadcast,
67 or disseminated, does any of the following:
68 (a) Fails to clearly and conspicuously disclose at the
69 outset of the advertisement the phrase, “This is a paid
70 advertisement for legal services.”
71 (b) Includes terminology implying that the advertisement is
72 a “medical alert,” “health alert,” “consumer alert,” “public
73 service announcement,” or similar public alert or announcement.
74 (c) Displays the logo, or a similar facsimile thereof, of a
75 federal or state government agency in a manner implying
76 affiliation with, or sponsorship by, a government agency.
77 (d) Includes terminology, including use of the term
78 “recall” when referring to a product, implying that the product
79 has been recalled when, in fact, the product has not been
80 recalled by a government agency or through agreement between a
81 manufacturer and a government agency.
82 (e) Fails to clearly and conspicuously disclose the sponsor
83 of the advertisement.
84 (f) Fails to clearly and conspicuously disclose the
85 attorney or law firm who will represent persons responding to
86 the advertisement or how those persons will be referred to
87 attorneys or law firms for representation if the sponsor of the
88 advertisement will not represent those persons.
89 (g) If the advertisement solicits clients who may allege
90 injury from a prescription drug approved, cleared, or the
91 subject of a monograph authorized by the United States Food and
92 Drug Administration, fails to clearly and conspicuously disclose
93 the following warning: “Do not stop taking a prescribed
94 medication without first consulting your doctor. Discontinuing a
95 prescribed medication without your doctor’s advice can result in
96 injury or death.”
97 (h) If the advertisement solicits clients who may allege
98 injury from a prescription drug or medical device approved,
99 cleared, or the subject of a monograph authorized by the United
100 States Food and Drug Administration, fails to clearly and
101 conspicuously disclose that the drug or medical device remains
102 approved by the United States Food and Drug Administration,
103 unless the product is recalled or withdrawn.
104 (i) Fails to present any disclosure required by this
105 subsection such that:
106 1. Written disclosures are clearly legible and, if
107 televised or displayed electronically, are displayed for
108 sufficient time to enable the viewer to easily see and fully
109 read the disclosure.
110 2. Spoken disclosures are plainly audible and clearly
111 intelligible.
112 Section 2. Effective October 1, 2020, section 877.025,
113 Florida Statutes, is created to read:
114 877.025 Solicitation of legal services; wrongful use or
115 disclosure of protected health information.—
116 (1) As used in this section, the term:
117 (a) “Person” has the same meaning as provided in s. 1.01
118 and includes an attorney or law firm or an employee or agent
119 thereof.
120 (b) “Protected health information” has the same meaning as
121 provided in 45 C.F.R. s. 106.103.
122 (c) “Solicit” means to offer to provide legal services by
123 written, recorded, or electronic communication or by in-person,
124 telephone, or real-time electronic contact.
125 (2) A person may not use, cause to be used, obtain, sell,
126 transfer, or disclose to another person without written
127 authorization protected health information to solicit legal
128 services.
129 (3)(a) A person who violates subsection (2) commits a
130 deceptive and unfair trade practice subject to the penalties and
131 remedies provided in part II of chapter 501.
132 (b) A person who willfully and knowingly violates
133 subsection (2) commits a misdemeanor of the first degree,
134 punishable as provided in s. 775.082 or s. 775.083.
135 (c) A person who willfully and knowingly violates
136 subsection (2) with intent to sell, transfer, or use protected
137 health information for financial gain commits a felony of the
138 second degree, punishable as provided in s. 775.082, s. 775.083,
139 or s. 775.084, except the term of imprisonment may not exceed 10
140 years and the fine may exceed $10,000 but may not exceed
141 $250,000.
142 (4) This section does not apply to disclosure of protected
143 health information to an attorney, or the attorney’s use of such
144 protected health information, in any judicial or administrative
145 proceeding or such other use or disclosure otherwise permitted
146 or required by law.
147 Section 3. Except as otherwise expressly provided in this
148 act, this act shall take effect July 1, 2020.