Bill Text: FL H0485 | 2012 | Regular Session | Introduced

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Bill Title: Legal and Medical Referral Service Advertising

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2012-03-09 - Died in Civil Justice Subcommittee [H0485 Detail]

Download: Florida-2012-H0485-Introduced.html

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HB 485

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

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