first_img April 15, 2004 Senior Editor Regular News House moves attorney advertising bill Gary Blankenship Senior Editor A bill outlawing attorney advertising that urges people to file lawsuits has cleared the Florida House, although a First Amendment expert said it’s unlikely to pass constitutional muster.But nonetheless, the Bar Board of Governors has been told a companion bill is likely to be introduced in the Senate and is expected to pass there.A second bill on medical malpractice is also advancing in the House, and it contains a provision banning lawyers from seeking medical malpractice clients through advertising.The House passed HB 1357, which bans ads that urge people to file lawsuits, on March 25 by a 104-8 margin and sent it to the Senate.President-elect designate Alan Bookman, chair of the Bar’s Legislation Committee, reported to the board that Sen. Skip Campbell, D-Tamarac, has expressed an interest in the matter.The Legislation Committee, however, has reservations about the legality of the measure. “Obviously there are some constitutional issues, but the House has decided there is a compelling state interest and has decided to go forward,” Bookman said.The board passed a Bar legislative position saying the Bar supports the strongest legislation on lawyer advertising that is consistent with the constitution.Pending on the House floor, as this News went to press, was HB 1821 on medical negligence. The last section of that bill would amend F.S. §877.025 to ban direct or indirect solicitation of clients to file a medical malpractice claim, using third parties to find such cli-ents, or to “advertise, using any form of electronic or other media, in a manner that solicits legal business for a profit by urging a person to consider bringing legal action relating to medical malpractice.”Rep. David Simmons, R-Altamonte Springs, sponsor of HB 1357, told the House during the bill’s second reading, that the legislation strikes a balance and addresses “the overriding interest of our state in providing that the judicial system is properly administered.”When the bill came up for final passage, he added, “It goes a long way toward helping with the fundamental problem we have in our legal system today. Please support it.”Rep. John Quinones, R-Kissimmee, said the bill “is way overdue. We were able to determine there is a compelling state interest based on the fact that we had a medical malpractice crisis last year. This shows we are proactive. We need to weed out frivolous lawsuits and that’s what this does.”He added the bill will help attorneys who care about clients “and not just about making money.”The bill was also praised by Rep. Kevin Ambler, R-Tampa, who had criticized the original draft of the legislation when it was before the House Judiciary Committee. He said the final version will give The Florida Bar and the attorney general the ability to go after bad legal advertising and it promotes good advertising. He blamed problem advertising on a few “bad apples,” adding, “I think what Rep. Simmons has done with this bill has made a serious attempt to show the legal profession is serious about policing itself.”The bill makes a finding in which the legislature has determined that advertising urging a person to file a suit “destroys personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law.”It goes on to say this practice has created a crisis in the judicial system and created a compelling state interest in limiting advertising.The measure provides: “It shall be unlawful to advertise, using any form of electronic or other media, in a manner that solicits legal business for a profit by urging a person to consider bringing legal action against another.” The bill does create an exception for public service ads, for matters expressly allowed in Florida Bar Rule 4-7.2(c)(11), or for ads that give only the name of the advertising lawyer or law firm, the area that firm or lawyer practices, and informs injured or aggrieved persons of their right to seek redress. Public service ads must not “entreat, request, or urge another to use the services of an attorney or law firm for the purpose of bringing legal action against another.”HB 1821 contains similar findings and provisions, except it is limited to medical malpractice cases.Both bills impose a civil fine of $1,000 for the first offense and $10,000 for each subsequent offense. (Under the bills, one ad broadcast multiple times counts as only one offense.) They also empower the Bar and the Florida attorney general to enforce the law, and provide for collection of costs and attorneys’ fees from offending attorneys in successful cases. The bills also allow the Bar and attorney general to seek injunctions.The original version of HB 1357 permitted any Florida resident to sue over an offending ad, acting as a “private attorney general.” That was amended out of the bill, and the Bar and attorney general were authorized as the enforcement entities.During hearings of HB 1357 in the Judiciary Committee, Simmons said the bill was drawn up to comply with U.S. Supreme Court rulings on lawyer advertising, particularly in Central Hudson Gas & Electric Corp v. Public Service Commission of New York, 447 U.S. 557 (1980).But Ft. Lauderdale attorney Bruce Rogow, an expert on First Amendment issues including attorney advertising, said in an interview he doubts either HB 1357 or HB 1821 will survive if they are passed by the legislature and signed by the governor.He noted that the provisions on HB 1821 apply only to medical malpractice advertising, so, “It’s not even content neutral, and that’s one of the principles of First Amendment law. That doesn’t pass constitutional muster on the simplest grounds.”As for Simmons’ HB 1357, Rogow said, “It is not narrowly tailored. You start out under the Central Hudson test: Is the ad truthful and not misleading? And if it is truthful and not misleading, then it is protected commercial speech. The state can only limit it if it can show a substantial government interest and the rule addresses it in a narrowly tailored way.”While both bills have similar language stating why the legislature sees the need to restrict lawyer advertising, Rogow said that doesn’t mean it meets the burden of proof to restrict free speech.“This kind of ex cathedra statements of government interest unsupported by any record is not going to be sufficient,” he said.Passing a law to restrict lawyer advertising is not easy, Rogow said. The U.S. Supreme Court has only upheld two restrictions, one that prohibits in-person solicitation and the second which upholds The Florida Bar rule requiring a 30-day waiting period before sending direct mail solicitations to potential personal injury clients. Rogow argued the losing side of that 5-4 decision.He noted that the court’s rationale in upholding that rule rested in protecting the privacy of injured persons, as well as Bar studies showing that such solicitations damage the public perception of the legal system. House moves attorney advertising billlast_img read more