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.