By Gary Blankenship
Senior Editor
A bill that would ban some lawyer advertising has apparently stalled in the Florida Legislature after its sponsor told Florida Bar officials he wants time to address concerns before bringing the bill back next year.

Rep. David Simmons, R-Altamonte Springs, said he hopes the Bar and the Florida Supreme Court will address lawyer advertising before the 2005 session, or he expects to reintroduce — and pass — legislation that prohibits lawyers from running ads soliciting clients to file lawsuits.

Simmons’ HB 1357 passed the House of Representatives 104-8 in late March and was sent to the Senate. It was taken up in the Senate Judiciary Committee on April 12, and temporarily postponed. Since that committee wasn’t expected to meet again this session, it is very unlikely the bill will be acted on by the upper chamber.

Bar legislative consultants said if taken up by the entire Senate, the bill likely would have passed and been sent to the governor.

Despite disagreement of some experts, Simmons, in an interview with the News, said he thinks his bill is constitutional and is necessary to protect the future of the legal profession.

He noted that the U.S. Supreme Court has upheld regulations that ban in-person solicitation by attorneys. “I don’t believe someone should be able to go in the back door and solicit by advertising when they can’t go in the front door [with direct solicitation],” the representative said. “I think it is inaccurate to suggest the strength of television advertising is less than a person appearing personally.”

While he said he strongly supports the Bar, he added its advertising efforts have fallen short, either through a lack of resources in enforcement or through weak regulations. “In many ways it [his bill] is a shot over the bow, it’s a wake-up call to The Florida Bar and the Florida Supreme Court and attorneys,” Simmons said.

The danger from not regulating ads is the bad advertisements cause the public to mistrust the legal profession. That creates pressure in the legislature for laws that are ultimately damaging to the profession and the legal system, he said. As an example, Simmons noted that last year’s workers’ compensation changes severely limited the role of attorneys in representing injured workers.

An expected review of PIP insurance cases in the next year or so could produce the same result, Simmons said, and there are also efforts to reduce the participation of plaintiff attorneys in personal injury cases.

“I am one of the strongest proponents for the legal profession there ever was in the legislature, but I assure you unless attorneys get control over their own advertising, we’re going to see the future and it’s not bright for attorneys,” he said. “The compelling state interest is we need attorneys involved to represent people who are injured and who have their rights violated, and the way things are headed, there is going to be a significant effort to exclude attorneys from all of these processes . . . .

“I am watching the burning of Rome, and if the attorneys sit around and fiddle, we’re going to see the end of the legal profession the way we know it.”

Simmons said he knows about the special advertising task force created by President-elect Kelly Overstreet Johnson to look at Bar advertising rules, and he is considering addressing that panel. He said he was less familiar with the Bar’s statewide advertising grievance committee, created a couple years ago to handle advertising cases and has recently stepped up its enforcement efforts.

Simmons’ HB 1357 would make it illegal to run an ad in electronic or other media that urges a potential client to file a lawsuit. The bill would allow public service ads as long as there was no solicitation for clients. Ads that give a law firm’s name, area of practice, and informs an aggrieved person of his or her right to seek redress in the courts are also allowed, as are ads that meet the “safe harbor” provisions of the Rule Regulating The Florida Bar 4-7.2(c)(11).

The bill also has a finding that such advertising “destroys personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law.”

The bill imposed a penalty of $1,000 for the first violation and $10,000 for each succeeding violation, and delegates enforcement responsibilities to The Florida Bar and the Florida Attorney General. Those agencies would also be able to collect fees and costs for any successful prosecution.

Another bill, HB 1821, on medical negligence contained a provision banning lawyer advertising that would solicit clients to file a medical malpractice claim. That bill was stalled on the House floor as this News went to press.

In response to the bill, the Bar Board of Governors, at its April 2 meeting, approved a legislative position that the Bar would support legislation imposing the strictest legislation of attorney advertising consistent with constitutional limitations.