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After proposing that the Florida Legislature assume responsibility for writing court procedural rules, some lawmakers now want to take over another judicial branch function by setting dramatic new limits on lawyer advertising. As part of a wide-ranging medical malpractice bill introduced Monday in the House Insurance Committee, Republican House Speaker Johnnie Byrd has inserted a provision calling for unprecedented limits on advertising by lawyers in the medical negligence area. The measure comes on the heels of the House Judiciary Committee unanimously approving a bill last week that would apply to all attorney advertising. Both bills contend that attorney advertising has “created a crisis in this state’s judicial system,” though the sponsors offer no empirical evidence for that controversial claim. The push for advertising curbs is being spearheaded by state Rep. David Simmons, R-Altamonte Springs, an attorney who has handled personal injury cases. He argues that the Florida Bar has failed to effectively police its members when it comes to advertising. The unexpected emergence of lawyer advertising as a legislative issue this session poses a dilemma for Bar leaders. Florida already has some of the toughest limits on lawyer advertising in the country. Critics of the pending legislation say the language of the bills is so vague and sweeping that it would not pass constitutional muster. They also say that the Legislature does not have the authority to regulate Florida lawyers. Many Bar leaders abhor some of the aggressive advertising being used by lawyers and law firms in Florida, particularly in the personal injury area. The Bar and its lawyer advertising committee has struggled for years with how to police the area while staying within the U.S. Constitution and Florida Supreme Court rules. In an interview, Simmons said he hopes the legislation approved last week by the Judiciary Committee will reach the House floor for a vote today. While there is no companion bill in the Senate, he expressed optimism that it would pass the full House and find support in the Senate. But some lawyers expressed strong opposition. “Florida legislators do not understand constitutional law or the separation of power,” said Andrew S. Berman, a partner at Young Berman Karpf & Gonzalez in North Miami Beach. “When it comes to free speech and regulation of lawyers, the U.S. Constitution prohibits them from restricting free commercial speech absent compelling state interest, which does not exist here.” Elizabeth Clark Tarbert, the Bar’s ethics counsel, said her organization had no comment on the legislation. The moves to limit lawyer advertising come as the Republican-dominated Legislature increasingly seeks to exercise control over the Florida Supreme Court and the state judiciary, whose rulings at times have incurred the wrath of Gov. Jeb Bush and legislative Republicans. Republican lawmakers also have complained that the Florida Bar hasn’t done enough to discipline its members. The legislation passed by the House Judiciary Committee last week would make it illegal to advertise in “a manner that solicits legal business for a profit by urging a person to consider bringing legal action against another.” It proposes a civil penalty of $1,000 for the initial offense and $2,000 for each subsequent offense. It defines “solicit” as meaning “to entreat, request or urge another to use the services of an attorney or a law firm.” The bill gives the Florida attorney general’s office standing, along with the Florida Bar, to bring a complaint against a lawyer or law firm for violating the provision. It excludes not-for-profit organizations from coverage. While prohibiting ads that will encourage litigation, lawyers are explicitly allowed to run ads that include the attorney’s name and field of practice and to state that an injured person has the right to seek redress. The Insurance Committee bill contains similar prohibitions. But its applicability would be limited to ads soliciting business from people with potential medical negligence claims. The measure before the Insurance Committee, spearheaded by House Speaker Byrd, is expected to go to a vote today. It is part of a larger bill that includes several controversial provisions on medical malpractice, such as granting sovereign immunity to medical schools that perform services at public hospitals and requiring that experts in medical malpractices case be certified. Lawyer advertising was prohibited in Florida and much of the country until the U.S. Supreme Court issued its landmark ruling in Bates v. Arizona in 1977. The high court held that attorney advertising is commercial speech and is constitutionally protected. Referring to the bill approved by the House Judiciary Committee on Thursday, Berman said that “on its face” it is unconstitutional. He said the bill “would get laughed out of federal court.” Rep. Simmons said, however, that his bill was carefully written so that it would survive a constitutional challenge. Rather than seeking to ban lawyer advertising, he said, the bill seeks to “clean it up.” “The Bar rules do not go far enough in prohibiting lawyers from inciting litigation,” Simmons said. “We believe this is an area that the Bar has not addressed enough.” The Bar, however, has been active on the issue of lawyer advertising. It recently convened a task force on the issue, headed by Miami attorney Manuel R. Morales Jr. The 21-member task force has met once and will issue a report early next year, Tarbert said. Bar president-elect Kelly Overstreet Johnson, a partner at Broad and Cassel in Tallahassee, has said that she intends to focus on attorney advertising during her tenure as president. TAILORING RULES Since the U.S. Supreme Court’s ruling in Bates, the high court has carved out two exceptions to the protection for lawyer advertising, said Fort Lauderdale appellate lawyer Bruce Rogow. It has upheld state limitations on direct solicitation of clients, popularly known as ambulance chasing. And it has upheld rules requiring lawyers to wait a certain period of time after accidents before sending direct mail to potential clients. “You start out with the presumption that lawyer advertising is protected and the state must show a substantive evil if it is to stop the advertising,” Rogow said. “Then the advertising [rule] must be fairly tailored to address that evil. It is a constant battle that people try to address evils by restricting speech. But for the most part, the court comes down on the side of speech.” Following Bates, there was a flurry of unregulated attorney advertising in Florida, Tarbert said. As a result, the Bar convened a blue ribbon committee to examine the issue. In 1990, the state Supreme Court approved the first set of attorney advertising rules. In 1999, the court enacted a second set of rules, which are in use today. The relevant provisions are found in the Rules of Professional Conduct, rules 4-7.1 through 4-7.11. The thrust of the rules, according to Tarbert, is that attorneys must be truthful and straightforward in advertising. “The heart of it is to protect the public from false or misleading information,” she said. Among other things, attorneys must give the telephone number to their actual office to avoid any confusion. For instance, a Pensacola lawyer cannot advertise as a Miami lawyer by using a Miami telephone number, she said. Lawyers cannot guarantee results or use testimonials. Advertisements must be filed with the Bar for review. The current rules, however, do not block lawyers from what Simmons calls “inciting litigation.” Simmons’ bill would attempt to do that. “This is a matter necessary for preservation for the profession of law as we know it,” Simmons said. “Attorneys are literally cannibalizing attorneys. If they would look around and see what has happened to the practice of law, they are finding that the general population is despising attorneys. The reason is that people are deluged with these advertisements that go overboard.” As one example, Simmons cited the 1-800-Pit-Bull ads that have aired on television and were run by the Fort Lauderdale personal injury firm Pape & Chandler. In an interview, John Pape said the firm had stopped running the ads because of a “business decision” but said he has no regrets about the ad campaign. He contended that his firm’s ads did not “incite” litigation or demean the legal profession. Simmons’ bill would amend section 807.02 of the Florida Statutes, one of the rare statutes that address attorney conduct. The law forbids lawyers to “solicit” legal business directly or indirectly. While Article V of the Florida Constitution gives the judiciary the power to regulate the legal profession, the Florida Supreme court has ruled previously that the Legislature and judiciary can both regulate lawyers. It is not clear, however, exactly where the lines are drawn between the Legislature’s and the judiciary’s authority. But Andrew Berman argues that the state constitution “prevents the Legislature from entering into the area of lawyer regulation.” Simmons’ proposed statute reads that the Legislature “has determined” that legal advertising that incites a person to file suit “destroys the personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law.” Rogow said he was not aware of any study that supported such a conclusion and said there are more specific ways to address a concern over advertising that inspires lawsuits. “If avoiding frivolous lawsuits is a government interest, there are narrow ways to address it,” Rogow said. “You can’t hit commercial speech right with a hammer when you’ve got a much more tailored way to address those concerns.”

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