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.