| 1 | A bill to be entitled |
| 2 | An act relating to legal and medical referral service |
| 3 | advertising; providing definitions; requiring advertising |
| 4 | from a medical or lawyer referral service related to motor |
| 5 | vehicle accidents to comply with certain requirements |
| 6 | regarding content; requiring advertisements or unsolicited |
| 7 | written communications from certain legal referral |
| 8 | services related to motor vehicle accidents to comply with |
| 9 | the Supreme Court of Florida's Rules Regulating The |
| 10 | Florida Bar; requiring that published advertisements from |
| 11 | a lawyer referral service be filed with The Florida Bar |
| 12 | along with an affidavit meeting certain criteria; |
| 13 | requiring advertisements or unsolicited written |
| 14 | communications from a lawyer referral service to display |
| 15 | certain information; requiring a referring person or |
| 16 | entity to provide certain financial information to the |
| 17 | person referred to a lawyer or health care provider; |
| 18 | prohibiting a lawyer referral service to condition |
| 19 | membership based on certain criteria; prohibiting a |
| 20 | medical referral service from making referrals only to a |
| 21 | medical clinic or health care provider in which it has a |
| 22 | financial or ownership interest; providing civil and |
| 23 | criminal penalties for violations relating to legal and |
| 24 | medical referral advertising and relief to persons |
| 25 | affected; providing an effective date. |
| 26 |
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| 27 | WHEREAS, there have been numerous complaints concerning |
| 28 | misleading and deceptive advertisements directed to motor |
| 29 | vehicle accident victims by entities who advertise they are |
| 30 | available to refer motor vehicle accident victims to lawyers and |
| 31 | health care providers, and |
| 32 | WHEREAS, it is important for the public to have an absolute |
| 33 | trust in public safety officers and officials, including but not |
| 34 | limited to, firefighters, police officers, and paramedics, and, |
| 35 | as such, it is in the best interest and welfare of the state |
| 36 | that the image, representation, and likeness of public safety |
| 37 | officers and officials not be used in a deceptive and misleading |
| 38 | manner to falsely misrepresent to the public that such officers |
| 39 | and officials are recommending that the public call a help-line |
| 40 | for accident victims which is the phone number for either an |
| 41 | auto accident clinic or an entity in business to refer motor |
| 42 | vehicle accident victims to a specific health care provider |
| 43 | clinic, lawyer, or law firm, and |
| 44 | WHEREAS, the public has been misled and deceived by health |
| 45 | care provider clinics and entities claiming to be medical |
| 46 | referral services and lawyer referral services that advertise |
| 47 | using a catchy phone number or slogan and who represent |
| 48 | themselves as an "Ask Us" informational service for motor |
| 49 | vehicle accident victims, without disclosing they are really a |
| 50 | front for a specific health care provider clinic, lawyer, or law |
| 51 | firm, and |
| 52 | WHEREAS, the public should not be deceived and misled by |
| 53 | false or deceptive advertising that is for the purpose of |
| 54 | steering motor vehicle accident victims to a specific health |
| 55 | care provider, lawyer, or law firm, and |
| 56 | WHEREAS, lawyer advertisements for motor vehicle accidents |
| 57 | are regulated by the Supreme Court of Florida's Rules Regulating |
| 58 | The Florida Bar; however, those rules are not directly |
| 59 | applicable to non-lawyer entities that advertise to motor |
| 60 | vehicle accident victims and refer those victims to lawyers or |
| 61 | law firms, and |
| 62 | WHEREAS, because the Supreme Court of Florida's Rules |
| 63 | Regulating The Florida Bar concerning lawyer advertisements are |
| 64 | for the express purpose of protecting the public from misleading |
| 65 | or deceptive advertising by lawyers only, it is necessary to |
| 66 | adopt the following broader approach to the protection of the |
| 67 | public from false and deceptive advertising to motor vehicle |
| 68 | accident victims, NOW, THEREFORE, |
| 69 |
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| 70 | Be It Enacted by the Legislature of the State of Florida: |
| 71 |
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| 72 | Section 1. As used in this act, the term: |
| 73 | (1) "Electronic media" includes, but is not limited to, |
| 74 | computer-accessed, radio, and television advertisements. |
| 75 | (2) "Lawyer referral service" means any group or pooled |
| 76 | advertising program operated by any person, group of persons, |
| 77 | association, organization, or entity whose legal services |
| 78 | advertisements use a common telephone number, a uniform resource |
| 79 | locator (URL), or other form of contact and whose clients or |
| 80 | prospective clients are referred only to lawyers or law firms |
| 81 | participating in the group or pooled advertising program. A not- |
| 82 | for-profit referral program in which participating lawyers do |
| 83 | not pay a fee or charge of any kind to receive referrals or to |
| 84 | belong to the referral panel and undertake the referred matters |
| 85 | without expectation of remuneration is not considered a lawyer |
| 86 | referral service for purposes of this act. A lawyer referral |
| 87 | service for or operated by a voluntary bar association or legal |
| 88 | aid program recognized by The Florida Bar is exempt from the |
| 89 | provisions of this act related to the regulation of legal and |
| 90 | medical referral services advertising to motor vehicle accident |
| 91 | victims. |
| 92 | (3) "Medical referral services" means any group or pooled |
| 93 | advertising program operated by any person, group of persons, |
| 94 | association, organization, or entity whose legal and medical |
| 95 | services advertisements use a common telephone number, a uniform |
| 96 | resource locator (URL), or other form of contact and whose |
| 97 | patients or prospective patients are referred only to medical |
| 98 | clinics or health care providers participating in the group or |
| 99 | pooled advertising program. |
| 100 | Section 2. All advertising by or on behalf of a medical or |
| 101 | lawyer referral service to the general public for services |
| 102 | related to injuries from a motor vehicle accident must comply |
| 103 | with the following: |
| 104 | (1) If an advertisement includes any reference to |
| 105 | referring a person to a health care provider, lawyer, or law |
| 106 | firm, the advertisement must clearly disclose the county or |
| 107 | counties in which the health care provider, lawyer, or law firm |
| 108 | to whom the referral will be made has a bona fide office from |
| 109 | which the services will be provided; |
| 110 | (2) Each advertisement is prohibited from including any |
| 111 | false, misleading, or deceptive communication. A communication |
| 112 | violates this subsection if it: |
| 113 | (a) Contains a material misrepresentation of fact. |
| 114 | (b) Fails to disclose material information necessary to |
| 115 | prevent 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 |
| 118 | obtained that would deceive the public into having unjustified |
| 119 | expectations. For purposes of this act, a disclaimer that |
| 120 | "results will vary depending on the specific facts" is required |
| 121 | for any reference to past successes or results, and such |
| 122 | disclaimer shall be communicated in the exact same manner as any |
| 123 | reference to past successes or results. |
| 124 | (e) Contains a reference to monetary amounts that create |
| 125 | unjustified expectations, such as using deceptive statements |
| 126 | like "Don't make a million dollar mistake." or "You may be |
| 127 | entitled to $100,000." when there is no factual basis to suggest |
| 128 | such monetary amounts to the general public. |
| 129 | (f) Promises or suggests a specific result that cannot be |
| 130 | guaranteed, including promising or suggesting a monetary result |
| 131 | that cannot be guaranteed. |
| 132 | (g) Contains any testimonial by an actor, unless such |
| 133 | testimonial includes a disclaimer, communicated in the exact |
| 134 | same manner as the testimonial, that the testimonial is not a |
| 135 | true story and the person providing the testimonial is an actor |
| 136 | and not a real person. |
| 137 | (h) Contains any testimonial by a real person, unless such |
| 138 | person actually obtained the services of the person or entity |
| 139 | advertising the services, and the testimonial is completely |
| 140 | truthful and verifiable, and includes the disclaimer that |
| 141 | "results may vary depending on the specific facts." Such |
| 142 | disclaimer shall be communicated in the exact same manner as the |
| 143 | real person testimonial. |
| 144 | (i) Contains any verbal or visual reference, from the past |
| 145 | or in the present, to any connection between any person in |
| 146 | public safety, or purporting to be in public safety, or any |
| 147 | public safety entity that has any connection of any kind to the |
| 148 | person or entity advertising the services to motor vehicle |
| 149 | accident victims. This prohibition includes the use of any |
| 150 | visual or verbal reference to any actor purporting to be |
| 151 | connected in any way to a public safety officer or public safety |
| 152 | entity. This prohibition includes the use of any public safety |
| 153 | badge, emblem, uniform, hat, vehicle, or any replica of any such |
| 154 | item. An exception to this prohibition is when the person in |
| 155 | charge of a public safety entity gives express written consent |
| 156 | to the use of the reference to such agency in the advertisement |
| 157 | or communication. |
| 158 | Section 3. An advertisement or unsolicited written |
| 159 | communication for legal services related to motor vehicle |
| 160 | accidents disseminated in this state by or on behalf of any |
| 161 | lawyer referral service, other than a lawyer referral service |
| 162 | for or operated by a voluntary bar association or legal aid |
| 163 | program recognized by The Florida Bar, must comply with the |
| 164 | Supreme Court of Florida's Rules Regulating The Florida Bar |
| 165 | pertaining to lawyer referral and advertising services as if |
| 166 | those services were provided by members of The Florida Bar, |
| 167 | including filing requirements. |
| 168 | Section 4. (1) Each advertisement by or on behalf of a |
| 169 | lawyer referral service related to motor vehicle accidents that |
| 170 | is submitted for publication in the print or electronic media or |
| 171 | on a billboard in this state must at the same time be filed with |
| 172 | The Florida Bar, accompanied by an affidavit signed under oath |
| 173 | by the owner, shareholder, principal, or officer of the referral |
| 174 | service affirming under penalty of perjury that the person: |
| 175 | (a) Has read and understands the Supreme Court of |
| 176 | Florida's Rules Regulating The Florida Bar, which pertain to |
| 177 | lawyer referral and advertising services; |
| 178 | (b) Acknowledges that he or she is the person responsible |
| 179 | for the advertisement and for the adverse consequences of any |
| 180 | prohibited advertising, including those within this act; |
| 181 | (c) Affirms that the advertisement complies with the |
| 182 | Supreme Court of Florida's Rules Regulating The Florida Bar, |
| 183 | which govern lawyer advertising; |
| 184 | (d) Acknowledges that a knowing violation of the Supreme |
| 185 | Court Florida's Rules Regulating The Florida Bar, which govern |
| 186 | lawyer advertising, subjects the person to a civil penalty of |
| 187 | $1,000 for the first offense and a civil penalty of $5,000 for |
| 188 | each subsequent offense; and |
| 189 | (e) Affirms that the person: |
| 190 | 1. Has filed the advertisement for review with The Florida |
| 191 | Bar in compliance with the Supreme Court of Florida's Rules |
| 192 | Regulating The Florida Bar, which govern lawyer advertising; |
| 193 | 2. Is responsible for filing and will file the |
| 194 | advertisement for review with The Florida Bar in compliance with |
| 195 | the Supreme Court of Florida's Rules Regulating The Florida Bar, |
| 196 | which govern lawyer advertising; or |
| 197 | 3. Has determined that the advertisement is exempt from |
| 198 | the filing requirement as set forth in the Supreme Court of |
| 199 | Florida's Rules Regulating The Florida Bar, which govern lawyer |
| 200 | advertising. |
| 201 | (2) A copy of the affidavit must be submitted to The |
| 202 | Florida Bar and maintained by the referral services for 2 years. |
| 203 | Section 5. An advertisement or unsolicited written |
| 204 | communication disseminated in this state by or on behalf of a |
| 205 | lawyer referral service relating to motor vehicle accidents must |
| 206 | contain prominently within the body of the advertisement or |
| 207 | unsolicited written communication the statement: "This |
| 208 | advertisement is by a lawyer referral service. Lawyers may pay |
| 209 | this service for referrals of prospective clients who respond to |
| 210 | this advertisement. This lawyer referral service is not licensed |
| 211 | to provide legal services in Florida." |
| 212 | Section 6. When a person or entity that advertises the |
| 213 | service of referring motor vehicle accident victims to a health |
| 214 | care provider, lawyer, or law firm refers a person to a health |
| 215 | care provider, lawyer, or law firm, the referring person or |
| 216 | entity must provide the person referred with a written |
| 217 | disclosure that clearly and unambiguously states any financial |
| 218 | interest or financial relationship that the referring person or |
| 219 | entity has with the health care provider, lawyer, or law firm to |
| 220 | whom a referral is made. A copy of the written disclosure must |
| 221 | be submitted to The Florida Bar and maintained by the referral |
| 222 | service for 2 years. |
| 223 | Section 7. A lawyer referral service may not require a |
| 224 | participating lawyer or law firm to recommend the services of a |
| 225 | particular health care provider or other professional as a |
| 226 | condition of participation in the referral service. |
| 227 | Section 8. A medical referral service may not make |
| 228 | referrals only to a medical clinic or health care provider with |
| 229 | which the medical referral service has any financial or |
| 230 | ownership interest. |
| 231 | Section 9. (1)(a) A person or entity that violates this |
| 232 | act shall forfeit any monetary amount received as a result of an |
| 233 | advertisement that violates this act. |
| 234 | (b) A person or entity that violates this act is subject |
| 235 | to a civil penalty of $1,000 for the first offense and $5,000 |
| 236 | for each subsequent offense. |
| 237 | (c) Any sums collected as a civil penalty under this |
| 238 | subsection shall be deposited in the State Courts Revenue Trust |
| 239 | Fund. |
| 240 | (2) A person who claims a violation of this act may file a |
| 241 | complaint with the Department of Agriculture and Consumer |
| 242 | Services. If the department fails to initiate legal proceedings |
| 243 | within 90 days after receiving the complaint, the person who |
| 244 | filed the complaint may, in a court of competent jurisdiction, |
| 245 | seek to enforce such penalties and may seek an injunction |
| 246 | against the person in violation of this act. The right of a |
| 247 | person to initiate court proceedings is limited to the person |
| 248 | who first filed the complaint with the department on each |
| 249 | individual violation. |
| 250 | (3) A person who files a court action pursuant to this act |
| 251 | may recover attorney's fees and costs if successful in obtaining |
| 252 | an injunction, penalties, or both and may recover 25 percent of |
| 253 | all moneys paid as a civil penalty as a result of such person's |
| 254 | action to enforce this act, whether in court or through the |
| 255 | actions of the department. |
| 256 | (4) Each prohibited advertisement that appears on a |
| 257 | billboard, is published in print media, airs on radio or |
| 258 | television, or appears on a computer website controlled by the |
| 259 | party advertising the services constitutes a separate offense. |
| 260 | Section 10. After an adjudication of guilt is entered for |
| 261 | a first offense of violating this act, any subsequent knowing |
| 262 | violation of this act is a misdemeanor of the second degree, |
| 263 | punishable as provided in s. 775.082 or s. 775.083. A person who |
| 264 | violates section 2 of this act commits an unfair or deceptive |
| 265 | trade practice as defined in part II of chapter 501 and is |
| 266 | subject to the penalties and remedies provided therein. Further, |
| 267 | any person injured by a violation of this act may bring an |
| 268 | action for recovery of damages. A judgment in favor of the |
| 269 | person shall be for actual damages, and the losing party is |
| 270 | liable for the person's reasonable attorney's fees and costs. |
| 271 | Section 11. This act is cumulative and does not amend or |
| 272 | repeal any other valid law, code, ordinance, rule, or penalty |
| 273 | now in effect. |
| 274 | Section 12. This act shall take effect July 1, 2011. |