HB 485

1
A bill to be entitled
2An act relating to legal and medical referral service
3advertising; providing definitions; requiring
4advertising from a medical or lawyer referral service
5related to accidents or injuries to comply with
6certain requirements regarding content; requiring
7advertisements or unsolicited written communications
8from certain legal referral services related to
9accidents or injuries to comply with the Supreme Court
10of Florida's Rules Regulating The Florida Bar;
11requiring that published advertisements from a lawyer
12referral service related to accident or injury claims
13be filed with The Florida Bar along with an affidavit
14meeting certain criteria; requiring advertisements or
15unsolicited written communications from a lawyer
16referral service related to accident or injury claims
17to display certain information; requiring a medical or
18lawyer referral service to obtain certain information
19from the person referred to a lawyer or health care
20provider; prohibiting lawyer referral services and
21medical referral services from conditioning
22participation in those services on recommending
23certain other services; prohibiting a medical referral
24service from making referrals only to a medical clinic
25or health care provider in which it has a financial or
26ownership interest unless the service includes in its
27advertisements notice of that interest and limitation;
28providing civil and criminal penalties for violations
29relating to legal and medical referral advertising and
30relief to persons affected; providing for the
31disposition of the proceeds of civil penalties
32collected; providing for cumulative effect; providing
33for severability; providing an effective date.
34
35     WHEREAS, there have been numerous complaints concerning
36misleading or deceptive advertisements directed at accident or
37injury victims by entities that advertise that they are
38available to assist accident victims or to refer accident or
39injury victims to lawyers and health care providers, and
40     WHEREAS, it is important for the public to have an absolute
41trust in public safety officers and officials, including, but
42not limited to, firefighters, police officers, military
43personnel, and paramedics, and it is in the best interest and
44welfare of the state that the image, representation, and
45likeness of public safety officers, armed services personnel,
46and other officials not be used in a deceptive or misleading
47manner to falsely misrepresent to the public that such officers,
48service members, and officials are recommending that the public
49call a help line for accident or injury victims which is the
50phone number for either an accident or injury clinic or an
51entity in business to refer accident or injury victims to a
52specific health care provider clinic, lawyer, or law firm, and
53     WHEREAS, the public has been misled or deceived by health
54care provider clinics and entities claiming to be medical
55referral services and by nonlawyer-owned lawyer referral
56services that advertise using a catchy phone number or slogan
57and that represent themselves as an "Ask Us" informational
58service for accident or injury victims, without disclosing they
59are really a front for a specific health care provider clinic,
60patient broker, lawyer, or law firm, and
61     WHEREAS, the public should not be deceived and misled by
62false or deceptive advertising that is for the purpose of
63steering accident or injury victims to a specific health care
64provider, patient broker, lawyer, or law firm, and
65     WHEREAS, lawyer advertisements for accidents and injuries
66are regulated by the Supreme Court of Florida's Rules Regulating
67The Florida Bar; however, those rules are not directly
68applicable to nonlawyer entities that advertise to accident or
69injury victims and refer those victims to lawyers or law firms,
70and
71     WHEREAS, the Supreme Court of Florida has promulgated Rules
72Regulating The Florida Bar and, specifically, rules regulating
73the communication of information about legal services, and
74     WHEREAS, the Supreme Court of Florida and The Florida Bar
75may engage in disciplinary proceedings against lawyers who
76violate the Rules Regulating The Florida Bar, but discipline by
77The Florida Bar does not extend to nonlawyers; therefore, for
78the protection of the public from false or deceptive advertising
79by nonlawyers that specifically advertise in this state to
80accident or injury victims or for the referral of accident or
81injury victims for legal services, it is necessary to adopt the
82following act, NOW, THEREFORE,
83
84Be It Enacted by the Legislature of the State of Florida:
85
86     Section 1.  As used in this act, the term:
87     (1)  "Advertising" means an unsolicited communication to
88the general public for the purposes of procuring business
89related to any possible claims for accidents or injuries. The
90forms of such advertising include, but are not limited to,
91electronic media advertising, phone directory display
92advertising, display print advertising, motor vehicle wrap
93advertising, and billboard advertising.
94     (2)  "Electronic media" includes, but is not limited to,
95radio, television, the Internet, electronic phone books,
96electronic billboards, and any other medium that delivers
97content by electronic technology.
98     (3)  "Lawyer referral service" means any person, group of
99persons, association, organization, or entity that advertises
100using a common phone number, a common uniform resource locator
101(URL), or another form of contact shared by members of the
102service and that advertises to the general public that its
103services include making a referral to a lawyer or law firm for
104an accident or injury claim. The term does not include:
105     (a)  A lawyer or law firm that advertises using the name of
106the lawyer or law firm;
107     (b)  A pro bono or not-for-profit referral program in which
108participating lawyers do not pay a fee or charge of any kind to
109receive referrals or to belong to the referral panel and
110undertake the referred matters without expectation of
111remuneration.
112     (c)  A lawyer referral service for or operated by a
113voluntary bar association or legal aid program recognized by The
114Florida Bar.
115     (4)  "Medical referral service" means any person, group of
116persons, association, organization, or entity that specifically
117advertises in this state to accident victims, that advertises
118primarily for the purpose of a health care provider filing a
119claim for payment of treatment of an accident or injury victim,
120and that uses a common phone number, a uniform resource locator
121(URL), or another form of contact shared by members of the
122service. To refer to itself as a medical referral service in any
123advertisement, the referral service must have at least four
124independent health care providers to which it can refer
125consumers and with which it or any of its principals does not
126have any financial, contractual, or ownership interest.
127     Section 2.  All advertising by or on behalf of a medical or
128lawyer referral service to the general public for services
129related to claims from an accident or injury must comply with
130the following, unless compliance creates a conflict with the
131Supreme Court of Florida's Rules Regulating The Florida Bar:
132     (1)  If an advertisement includes any reference to
133referring a person to a health care provider, lawyer, or law
134firm, the advertisement must clearly disclose the county or
135counties in which the health care provider, lawyer, or law firm
136to whom the referral will be made has a bona fide office from
137which the services will be provided.
138     (2)  Each advertisement is prohibited from including any
139false, misleading, or deceptive communication. A communication
140violates this subsection if it:
141     (a)  Contains a material misrepresentation of fact.
142     (b)  Fails to fully disclose those facts and issues of law
143material to prevent the information supplied from being false or
144misleading.
145     (c)  Claims facts that cannot be substantiated.
146     (d)  Contains any reference to past successes or results
147that would deceive the public into having unjustified
148expectations. For purposes of this act, a disclaimer that
149"results will vary depending on the specific facts" is required
150for any reference to past successes or results, and such
151disclaimer must be communicated along with any reference to past
152successes or results.
153     (e)  Contains a reference to monetary amounts and suggests
154an accident or injury victim is eligible to receive that amount
155when that suggestion is false or deceptive or fails to fully
156explain Florida law, such as using deceptive statements like
157"Don't make a million dollar mistake." or "You may be entitled
158to $100,000." when there is no factual basis to suggest such
159monetary amount to the general public.
160     (f)  Promises a specific result that cannot be guaranteed.
161     (g)  Includes an advertisement using a person falsely
162claiming the referral service helped that person.
163     (h)  Includes any testimonial or endorsement by a person
164who actually obtained the services of the referral service that
165is false or deceptive.
166     (i)  Includes an advertisement using a person truthfully
167stating the referral service helped that person unless the
168advertisement includes a disclaimer, equal in size to any phone
169number or e-mail address contained within the advertisement,
170that results may vary depending on the specific facts.
171     (j)   Includes any truthful testimonial or endorsement by a
172person who actually obtained the services of the referral
173service, unless the advertisement includes a disclaimer, equal
174in size to any phone number or e-mail address contained within
175the advertisement, that results may vary depending on the
176specific facts.
177     (k)  Contains any verbal or visual reference suggesting a
178connection between the referral service and any law enforcement
179agency, public safety office, emergency medical service, or
180armed service, including the use of any badge, emblem, uniform,
181hat, vehicle, or replica of such item that falsely suggests the
182referral service is connected with a law enforcement agency,
183public safety office, emergency medical service, or armed
184service.
185     Section 3.  An advertisement or unsolicited written
186communication for legal services related to accident or injury
187victims disseminated in this state by or on behalf of any lawyer
188referral service must comply with the Supreme Court of Florida's
189Rules Regulating The Florida Bar pertaining to lawyer referral
190and advertising services as if those services were provided by
191members of The Florida Bar, including filing requirements.
192     Section 4.  (1)  Each advertisement by or on behalf of a
193lawyer referral service that specifically advertises to accident
194or injury victims and that is submitted for publication in
195print, through electronic media, or on a billboard must be filed
196with The Florida Bar, as required by the Rules Regulating The
197Florida Bar when a lawyer advertises his or her business, and
198accompanied by an affidavit signed under oath by the owner,
199shareholder, principal, or officer of the referral service
200affirming under penalty of perjury that the person:
201     (a)  Has read and understands the Supreme Court of
202Florida's Rules Regulating The Florida Bar that pertain to
203lawyer referral and advertising services;
204     (b)  Acknowledges that he or she is the person responsible
205for the advertisement and for the adverse consequences of any
206prohibited advertising, including those within this act;
207     (c)  Affirms that the advertisement complies with the
208Supreme Court of Florida's Rules Regulating The Florida Bar that
209govern lawyer advertising;
210     (d)  Acknowledges that a knowing violation of the Supreme
211Court of Florida's Rules Regulating The Florida Bar that govern
212lawyer advertising subjects the person to possible criminal
213penalties and to a civil penalty of $1,000 for the first offense
214and $5,000 for each subsequent offense; and
215     (e)  Affirms that the person:
216     1.  Has filed the advertisement for review with The Florida
217Bar in compliance with the Supreme Court of Florida's Rules
218Regulating The Florida Bar that govern lawyer advertising;
219     2.  Is responsible for filing and will file the
220advertisement for review with The Florida Bar in compliance with
221the Supreme Court of Florida's Rules Regulating The Florida Bar
222that govern lawyer advertising; or
223     3.  Has determined that the advertisement is exempt from
224the filing requirement as set forth in the Supreme Court of
225Florida's Rules Regulating The Florida Bar that govern lawyer
226advertising.
227     (2)  A copy of the affidavit must be submitted to The
228Florida Bar and maintained by the referral service for 7 years.
229     Section 5.  An advertisement or unsolicited written
230communication disseminated in this state by or on behalf of a
231lawyer referral service relating to accident or injury victims
232must contain prominently within the body of the advertisement or
233unsolicited written communication the following statement: "This
234advertisement is by a lawyer referral service. Lawyers may pay
235this service for referrals of prospective clients who respond to
236this advertisement. This lawyer referral service is not licensed
237to provide legal services in Florida."
238     Section 6.  When a lawyer referral service or medical
239referral service that advertises the service of referring
240accident or injury victims to a health care provider, lawyer, or
241law firm refers a person to a health care provider, lawyer, or
242law firm, the referring person or entity must obtain from the
243person referred an executed written disclosure that clearly and
244unambiguously states any financial interest, financial
245arrangement, financial relationship, or contractual obligation
246that the referring person or entity has with the health care
247provider, lawyer, or law firm to whom the referral is made. A
248copy of each executed written disclosure must be provided to the
249person referred within 15 days after the referral, with the
250original signed disclosure maintained by the referral service
251for 7 years.
252     Section 7.  A lawyer referral service may not require a
253participating lawyer or law firm to recommend the services of a
254particular health care provider or other professional as a
255condition of participation in the referral service.
256     Section 8.  A medical referral service may not require a
257participating health care provider to recommend the services of
258a particular lawyer, law firm, or other health care provider as
259a condition of participation in the referral service.
260     Section 9.  (1)  A medical referral service may not make
261referrals only to a medical clinic or health care provider with
262which the medical referral service or any owner of the medical
263referral service has any financial or ownership interest unless
264each advertisement by the medical referral service includes a
265statement that the referral service only makes referrals to a
266medical clinic or health care provider in which the medical
267referral service has a financial or ownership interest.
268     (2)  If a medical referral service makes referrals to a
269health care provider not owned by a physician, it must include
270in its advertising the following notice: "Notice: We may refer a
271patient to a health care provider not owned by a physician."
272This notice must be included in each advertisement and must be
273as conspicuous as the advertised name of the referral service in
274the advertisement. If the name of the service is not included in
275the advertisement, the notice must be as conspicuous as the
276phone number or e-mail address in the advertisement, whichever
277is more noticeable.
278     Section 10.  (1)  Any person or entity that violates this
279act is subject to a civil penalty of $1,000 for the first
280offense and $5,000 for each subsequent offense. All civil
281penalties imposed shall be collected by the Department of Legal
282Affairs. Any sums collected as a civil penalty under this
283subsection shall be deposited by the Department of Legal Affairs
284in the State Courts Revenue Trust Fund.
285     (2)  A person who claims a violation of this act may file a
286complaint with the Department of Agriculture and Consumer
287Services. If the department fails to initiate legal proceedings
288within 90 days after receiving the complaint, the person who
289filed the complaint may, in a court of competent jurisdiction,
290seek to enforce such civil penalties and may seek an injunction
291against the person in violation of this act. The right of a
292person to initiate court proceedings is limited to the first
293person who filed the complaint with the department on each
294individual violation. All legal actions related to the same
295violation may be consolidated pursuant to court rules.
296     (3)  A person who files a court action pursuant to this act
297may recover attorney's fees and costs, if successful in
298obtaining an injunction; civil penalties; or both and may
299recover 25 percent of all moneys paid as a civil penalty as a
300result of such person's action to enforce this act, whether in
301court or through the actions of the Department of Agriculture
302and Consumer Services. The Department of Legal Affairs is
303responsible for collecting and disbursing all moneys paid as a
304civil penalty and authorized by the court or Department of
305Agriculture and Consumer Services for collection and
306disbursement under this subsection.
307     (4)  Each prohibited advertisement that appears on a
308billboard, is published in print media, or is broadcast on radio
309or television, or appears on a computer website controlled by
310the party advertising the services constitutes a separate
311offense.
312     Section 11.  A person who violates section 2 of this act
313commits an unfair or deceptive trade practice as defined in part
314II of chapter 501, Florida Statutes, and is subject to the
315penalties and remedies provided therein. Further, any person
316injured by a violation of this act may bring an action for
317recovery of damages. A judgment in favor of the person shall be
318for actual damages, and the losing party is liable for the
319person's reasonable attorney's fees and costs.
320     Section 12.  After a court finds that a person violated
321this act or admitted liability or guilt to a violation of this
322act, any subsequent knowing violation of the act by that person
323is a misdemeanor of the second degree, punishable as provided in
324s. 775.082 or s. 775.083, Florida Statutes.
325     Section 13.  This act is cumulative and does not amend or
326repeal any other valid law, code, ordinance, rule, or penalty
327now in effect.
328     Section 14.  If any provision of this act or its
329application to any person or circumstance is held invalid, the
330invalidity does not affect other provisions or applications of
331the act which can be given effect without the invalid provision
332or application, and to this end the provisions of the act are
333severable.
334     Section 15.  This act shall take effect July 1, 2012.


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