HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1205 Advertisement for Legal Services
SPONSOR(S): Civil Justice Subcommittee, Andrade
TIED BILLS: IDEN./SIM. BILLS: SB 1246
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 12 Y, 5 N, As CS Mawn Jones
2) Judiciary Committee 14 Y, 6 N Mawn Kramer
SUMMARY ANALYSIS
Up until 1977, most states prohibited attorney advertising. In Bates v. State Bar of Arizona, however, the U.S.
Supreme Court held that commercial speech, including attorney advertising, is protected by the First
Amendment and cannot be prohibited. The Supreme Court has since distinguished commercial speech that is
false, deceptive, or misleading, which may be prohibited, and specified that non-misleading commercial
speech may be regulated when there is a substantial government interest; the regulation directly advances the
government’s interest; and the regulation is narrowly tailored to meet that interest.
In 2019, the Federal Trade Commission (“FTC”) noted that the Food and Drug Administration’s (“FDA”)
Adverse Event Reporting System contained reports of consumers who had viewed attorney advertisements
warning about the prescription medications they were taking and discontinued taking such medications and
suffering adverse consequences as a result. The FTC warned that advertisements that cause, or are likely to
cause, viewers to discontinue taking prescription medications may constitute an unfair or deceptive trade act or
practice under federal law. Florida law also specifies those acts and practices that may constitute a deceptive
or unfair trade act or practice under the Florida Deceptive or Unfair Trade Practice Act (“FDUTPA”), which law
does not currently address such attorney advertisements.
CS/HB 1205:
 Prohibits a person or entity issuing a legal services advertisement from doing specified things, including
presenting the advertisement as a medical alert or as offering advice from a state or federal
governmental entity.
 Requires a person or entity issuing a legal services advertisement to solicit clients who may allege
injury from an FDA-approved prescription drug or medical device to include specified statements and
information in the advertisement, in the manner specified in the bill.
 Prohibits a person or entity from using, causing to be used, obtaining, selling, transferring, or disclosing
a consumer’s protected health information to another person or entity for the purpose of soliciting the
consumer for legal services without the consumer’s written authorization, except to an individual’s legal
representative under specified circumstances.
 Provides that a violation of the bill is a FDUTPA violation.
 Specifies that the bill does not limit or otherwise affect the Florida Bar’s authority to regulate the
practice of law, enforce its rules of professional conduct, or discipline any person admitted to the
practice of law.
 Specifies that the bill does not apply to an advertisement that has been reviewed and approved by a
Florida Bar ethics or disciplinary committee in accordance with its rules and professional conduct. ;
 Provides definitions and application.
The bill may have an indeterminate fiscal impact on the offices of the state attorney and the Department of
Legal Affairs within the Office of the Attorney General.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Attorney Advertising
Up until 1977, most states prohibited attorney advertising. 1 In Bates v. State Bar of Arizona, however,
the U.S. Supreme Court held that commercial speech, including attorney advertising, is protected by
the First Amendment and cannot be prohibited.2 The Supreme Court has since distinguished
commercial speech that is false, deceptive, or misleading, which may be prohibited, and specified that
non-misleading commercial speech may be regulated when:
 There is a substantial government interest;
 The regulation directly advances the government’s interest; and
 The regulation is narrowly tailored to meet that interest.3
The Supreme Court has also recognized not only that states have an interest in protecting their citizens
from misleading advertisements, but also that state bar associations have an interest in protecting the
image of attorneys admitted to the bar and the public’s perception of the judicial system. 4
Attorney Advertising Regulation in Florida
The Florida Bar, as an extension of the Florida Supreme Court, approves lawyer advertising, issues
advisory opinions interpreting Florida Bar rules, and investigates and prosecutes attorneys for alleged
rule violations.5 The Florida Bar’s legal advertising rules apply to all forms of communication soliciting
legal services in any print or electronic form, including newspaper, magazine, brochure, flyer, television,
radio, direct mail, electronic mail, and Internet advertisements, which in turn include banners, pop-ups,
websites, social media, and video sharing platforms.6
Advertisements in specified media, including print, television, radio, direct mail, and Internet
advertisements, must be submitted to the Legal Division of the Florida Bar at least 20 days prior to
dissemination.7 The Legal Division reviews each submitted advertisement to determine whether it
complies with the Florida Bar’s advertising rules and issues an opinion either approving or disapproving
the advertisement. Under these advertising rules, a legal advertisement must include:
 The name of the lawyer or law firm;8
 The location of the law practice;9 and
 Certain disclosures, when relevant, including whether:
 A case will be referred to another lawyer;10
 A spokesperson in the advertisement is not an employee or member of the law firm; 11 or
 A scene depicted in the advertisement is a dramatization and not an actual event.12
1
JD Supra, Remember When Lawyers Couldn't Advertise? (Oct. 26, 2018), https://www.jdsupra.com/legalnews/remember-when-
lawyers-couldn-t-advertise-11628/ (last visited April 13, 2023).
2 Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
3 Central Hudson Gas & Elec. v. Pub lic Service Commission, 447 U.S. 557 (1980).
4 Florida Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995).
5 The Florida Bar, Frequently Asked Questions Ab out the Florida Bar, https://www.floridabar.org/about/faq/ (last visited April 13, 2023).
6 Fla. Bar Code Prof. Resp. D. R. 4-7.11(a).
7 Fla. Bar Code Prof. Resp. D. R. 4-7.11.
8 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(1).
9 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(2).
10 Fla. Bar Code Prof. Resp. D. R. 4-7.12(b).
11 Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(5).
12 Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(6).
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 Such required information must be reasonably prominent and clearly legible if written and clearly
audible if spoken aloud.13 The Disciplinary Counsel of the Florida Bar investigates and prosecutes
attorneys for alleged violations of the Bar’s advertising rules.14
Recent Fourth Circuit Decision
In 2020, West Virginia passed the Prevention of Deceptive Lawsuit Advertising and Solicitation
Practices Regarding the Use of Medications Act (W.V. Act),15 which act regulated legal advertisements
soliciting clients for litigation involving medications or medical devices by:
 Requiring that such advertisements:
o State the following: “This is a paid advertisement for legal services.”
o Include a specified warning about consulting a doctor before stopping a prescribed
medication.
o Disclose that the subject of the legal advertisement remains approved by the FDA,
unless the product has been recalled or withdrawn.
 Directing that any words or statements required to appear in a legal advertisement be
presented clearly and conspicuously and in a specified manner.
 Prohibiting:
o Presenting a legal advertisement as a “consumer medical alert,” “health alert,”
“consumer alert,” “public service health announcement,” or using substantially similar
phrasing;
o Displaying the logo of a federal or state government agency in a manner that suggests
affiliation with the sponsorship of that agency;
o Using the word “recall” when referring to a product that has not been recalled by a
government agency or through an agreement between a manufacturer and government
agency;
o Failing to identify the legal advertisement’s sponsor; and
o Failing to identify the attorney or law firm that will represent clients, or how potential
clients or cases will be referred to attorneys or law firms that will represent clients if the
legal advertisement’s sponsor may not represent persons responding to the
advertisements.
 Specifying that a person who violates the act engages in an unfair or deceptive act or practice
in violation of West Virginia law.
In 2022, the Fourth Circuit Court of Appeals upheld the W.V. Act after it was challenged on First
Amendment grounds, finding that the act regulated misleading speech and thus did not violate the First
Amendment.16 The U.S. Supreme Court declined to hear the case on appeal, and thus the Fourth
Circuit’s decision stands.17
Florida Deceptive and Unfair Trade Practices Act
The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) prohibits unfair methods of
competition, and unconscionable, unfair or deceptive acts or practices in the conduct of any trade or
commerce.18 FDUTPA operates for the purposes of:19
 Simplifying, clarifying, and modernizing the law governing consumer protection, unfair methods
of competition, and unconscionable, deceptive, and unfair trade practices;
13 Fla. Bar Code Prof. Resp. D. R. 4-7.12(d).
14 Fla. Bar Code Prof. Resp. D. R. 4-7.19.
15 W. Va. Code ss. 47-28-1, et seq.
16 Recht v. Morrisey, 32 F.4 th 398 (4th Cir. 2022).
17 Recht v. Morrisey, 143 S. Ct. 527 (2022).
18 The term “trade or commerce” is defined as “advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or
otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value,
wherever situated. The term includes the conduct of any trade or commerce including any nonprofit or not-for-profit person or activity.
Ss. 501.203(8) and 501.204(1), F.S.
19 S. 501.202, F.S.
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  Protecting the consuming public and legitimate business enterprises from those who engage in
unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the
conduct of any trade or commerce; and
 Making state consumer protection and enforcement consistent with established policies of
federal law relating to consumer protection.
FDUTPA provides investigative and enforcement authority to a state attorney if a violation occurs in or
affects the judicial circuit under the office’s jurisdiction, and to the Department of Legal Affairs (“DLA”)
within the Office of the Attorney General if a violation occurs in or affects more than one judicial circuit,
or if a state attorney defers to DLA.20 An enforcing authority may, within four years after a violation
occurs or within two years after the last payment in a transaction involved in a violation, bring an action:
 To obtain a declaratory judgment that an act or practice violates FDUTPA;
 To enjoin any person who has violated, is violating, or is otherwise likely to violate FDUTPA; or
 On behalf of one or more consumers or governmental entities for the actual damages caused
by an act or practice in violation of FDUTPA.21
Additionally, an enforcing authority may collect a civil penalty of up to $10,000 per violation plus
reasonable attorney fees and costs for a willful violation and up to a $15,000 penalty plus reasonable
attorney fees and costs for a willful violation involving a senior citizen, a disabled person, a military
servicemember, or the spouse or dependent child of a military servicemember. 22 DLA may also issue a
cease and desist order if such order would be in the public’s interest.23
FDUTPA also creates a private cause of action for any person aggrieved by a violation of FDUTPA to:
 Obtain a declaratory judgement that an act or practice violates FDUTPA;
 Enjoin a person who has violated, is violating, or is otherwise likely to violate this part; and
 Recover actual damages plus reasonable attorney fees and costs.24
The Health Insurance Portability and Accountability Act
The Federal Health Insurance Portability and Accountability Act (“HIPAA”) protects personal health
information (“PHI”) from unlawful or unauthorized disclosure.25 Privacy rules promulgated by the U.S.
Department of Health and Human Services establish national standards to protect medical records and
other PHI, which rules address, among other things, the use and disclosure of a person’s PHI.26 Only
“covered entities” are subject to HIPAA’s provisions, including:
 Health plans;
 Health care providers;
 Health care clearinghouses; and
 Business associates of any of the above.27
However, HIPAA requires the disclosure of a person’s PHI to the person who is the subject of the PHI
information or his or her personal representative, upon his or her request.28
The punishment for a HIPAA violation can be either a civil or criminal penalty. A civil penalty varies
based on the severity of the violation, the number of people affected, the nature of the data exposed,
the length of time a violation was allowed to persist, the prior compliance history of the covered entity,
20 Ss. 501.203(2), 501.206, and 501.207, F.S.
21 S. 501.207(1) and (5), F.S.
22 Ss. 501.2075, 501.2077, and 501.2105, F.S.
23 S. 501.208(1), F.S.
24 Ss. 501.2105 and 501.211, F.S.
25 Protected health information includes all individually identifiable health information held or transmitted by a covered entit y or its
business associate. Pub. L. No. 104-191 (1996).
26 U.S. Department of Health and Human Services, Health Information Privacy, https://www.hhs.gov/hipaa/for-
professionals/privacy/index.html (last visited April 13, 2023).
27 U.S. Department of Health and Human Services, Office for Civil Rights, Summary of the HIPAA Privacy Rule, (last rev. May 2003),
https://www.hhs.gov/sites/default/files/privacysummary.pdf. (last visited April 13, 2023).
28 Id.
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 and the knowledge the covered entity had of the violation. 29 Criminal penalties for a HIPAA violation are
triggered when a person obtains PHI for financial gain or under false pretenses. 30 The criminal penalty
for such HIPAA violations are punishable by up to 10 years imprisonment. 31
Drug-Related Injury Advertising
In 2017, the U.S. Chamber Institute for Legal Reform (“ILR”) surveyed 1,335 adults, 500 of whom were
currently taking or had taken one of 12 prescription drugs frequently targeted by personal injury
lawyers, and asked how they would respond if they saw an advertisement about a lawsuit for injury
caused by a medication they were taking.32 Nearly half of the survey respondents said they would
definitely or probably stop taking the drug immediately after seeing the advertisement. 33 When shown
an actual television legal advertisement about a drug they had taken, more than half said they would
reduce the dosage to below the prescribed amount. 34
A 2018 survey found that 90 percent of jurors would be somewhat or very concerned if they saw an
advertisement claiming that a company’s product injured people.35 Additionally, 72 percent of jurors
agreed that if a lawsuit alleges a company’s product has injured people, then there is probably truth to
the claim.36
In 2019, the Federal Trade Commission (“FTC”) contacted seven law firms and lead generating
companies, expressing concern that some television advertisements that solicit clients for personal
injury lawsuits against drug manufacturers may be considered deceptive or unfair trade practices under
f