By Goodman H.B. No. 656
74R2763 PB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain advertising by attorneys.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle G, Title 2, Government Code, is amended
1-5 by adding Chapter 84 to read as follows:
1-6 CHAPTER 84. ATTORNEY ADVERTISING
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 84.001. DEFINITIONS. In this chapter:
1-9 (1) "Advertisement" means a communication that:
1-10 (A) solicits the use of legal services provided
1-11 by an attorney;
1-12 (B) is directed to the general public;
1-13 (C) is paid for by, or on the behalf of, an
1-14 attorney; and
1-15 (D) is disseminated by:
1-16 (i) an electronic medium;
1-17 (ii) a print medium, including a newspaper
1-18 or billboard; or
1-19 (iii) a mailing directed generally to
1-20 members of the public and not to a specific person.
1-21 (2) "Attorney" means:
1-22 (A) a member of the State Bar of Texas;
1-23 (B) a person who is admitted to practice, in
1-24 good standing, and eligible to practice before:
2-1 (i) a federal court; or
2-2 (ii) the highest court of a state; or
2-3 (C) a person licensed to practice law in, or
2-4 admitted in good standing and eligible to practice before the bar
2-5 of the highest court of, a foreign country or a political
2-6 subdivision of a foreign country.
2-7 (3) "Electronic medium" means television, radio, or a
2-8 computer network.
2-9 (4) "Referral service" means a certified lawyer
2-10 referral service regulated under the Texas Lawyer Referral Service
2-11 Quality Assurance Act (Article 320d, Revised Statutes).
2-12 Sec. 84.002. APPLICABILITY. This chapter applies to:
2-13 (1) an attorney; and
2-14 (2) an agent of an attorney, law firm, or law
2-15 corporation doing business in this state.
2-16 (Sections 84.003-84.020 reserved for expansion)
2-17 SUBCHAPTER B. ADVERTISING
2-18 Sec. 84.021. LIMITATIONS ON ADVERTISEMENTS. (a) An
2-19 advertisement by an attorney may not contain a guarantee or
2-20 warranty regarding the results of a legal matter because of
2-21 representation by the attorney.
2-22 (b) An advertisement by an attorney may not contain a
2-23 statement or symbol stating that the attorney featured in the
2-24 advertisement can generally obtain immediate cash or quick
2-25 settlements.
2-26 (c) An advertisement by an attorney may not incorporate an
2-27 impersonation of the name, voice, photograph, or electronic image
3-1 of a person who directly or implicitly purports to be an attorney.
3-2 (d) An advertisement by an attorney may not incorporate an
3-3 impersonation of the name, voice, photograph, or electronic image
3-4 of a person who directly or implicitly purports to be a client of
3-5 the attorney featured in the advertisement, or a dramatization of
3-6 events, unless the advertisement discloses the impersonation or
3-7 dramatization.
3-8 (e) An advertisement by an attorney may not use a
3-9 spokesperson, including a celebrity spokesperson, unless the
3-10 advertisement discloses the title of the spokesperson.
3-11 (f) An advertisement by an attorney may not state that an
3-12 attorney offers representation on a contingent fee basis unless the
3-13 statement also advises whether a client will be held responsible
3-14 for any costs advanced by the attorney if a recovery is not
3-15 obtained on behalf of the client. If the client will not be held
3-16 responsible for those costs, the disclosure is not required.
3-17 Sec. 84.022. ADVERTISING THROUGH ELECTRONIC MEDIA. (a) To
3-18 comply with Section 84.021, in advertising by electronic media a
3-19 message as a whole:
3-20 (1) may not be false, misleading, or deceptive; and
3-21 (2) must be factually substantiated.
3-22 (b) In this section:
3-23 (1) "Factually substantiated" means capable of
3-24 verification by a credible source.
3-25 (2) "Message" means the effect in combination of the
3-26 spoken word, sound, background, action, symbols, visual image, or
3-27 any other technique employed to create the advertising message.
4-1 Sec. 84.023. PRESUMPTION. (a) A rebuttable presumption
4-2 exists that the following are false, misleading, or deceptive for
4-3 purposes of Section 84.022:
4-4 (1) a message as to the ultimate result of a specific
4-5 case or cases that is presented out of context without adequately
4-6 providing information as to the facts or law giving rise to the
4-7 result;
4-8 (2) the depiction of an event through methods such as
4-9 the use of displays of injuries, accident scenes, or portrayals of
4-10 other injurious events that may or may not be accompanied by sound
4-11 effects and that may give rise to a claim for compensation; and
4-12 (3) a message referring to or implying money is
4-13 received by or for a client in a particular case or cases or to
4-14 potential monetary recovery for a prospective client.
4-15 (b) For purposes of Subsection (a)(3), a reference to money
4-16 or a monetary recovery includes a specific dollar amount,
4-17 characterization of a sum of money, monetary symbols, or the
4-18 implication of wealth.
4-19 Sec. 84.024. INFORMATION AUTHORIZED FOR ADVERTISEMENTS. The
4-20 following information provided by an attorney is presumed to comply
4-21 with this chapter for purposes of advertising by electronic media
4-22 if the message as a whole is not false, misleading, or deceptive:
4-23 (1) the name of the attorney, including the name of
4-24 the law firm, names of professional associates, addresses,
4-25 telephone numbers, and the designation "lawyer," "attorney," or an
4-26 analogous designation;
4-27 (2) the attorney's fields of practice, including any
5-1 limitation of practice or specialization;
5-2 (3) fees charged by the attorney for routine legal
5-3 services;
5-4 (4) the attorney's date and place of birth;
5-5 (5) the date and place of admission of the attorney to
5-6 the bar of state and federal courts;
5-7 (6) the schools attended by the attorney, with dates
5-8 of graduation, degrees, and other scholastic distinctions;
5-9 (7) any public or quasi-public offices held by the
5-10 attorney;
5-11 (8) any military service by the attorney;
5-12 (9) legal writings authored by the attorney;
5-13 (10) legal teaching positions held by the person;
5-14 (11) memberships, offices, and committee assignments
5-15 held by the attorney in bar associations;
5-16 (12) memberships and offices held by the attorney in
5-17 legal fraternities and legal societies;
5-18 (13) technical and professional licenses held by the
5-19 attorney;
5-20 (14) memberships held by the attorney in scientific,
5-21 technical, and professional associations and societies; and
5-22 (15) any foreign language ability of the attorney or a
5-23 member of the attorney's law firm.
5-24 Sec. 84.025. ELECTRONIC MEDIA DISCLOSURE REQUIREMENTS. (a)
5-25 In addition to any disclosure required by the Texas Disciplinary
5-26 Rules of Professional Conduct, the disclosure required under
5-27 Subsection (b) must appear in advertising by electronic media. Use
6-1 of the disclosure alone does not rebut a presumption created under
6-2 Section 84.023.
6-3 (b) If an advertisement in the electronic media conveys a
6-4 message portraying a result in a particular case or cases, the
6-5 advertisement must state, in either an oral or printed
6-6 communication:
6-7 (1) the factual and legal circumstances that justify
6-8 the result portrayed in the message, including the basis for
6-9 liability and the nature of injury or damage sustained; or
6-10 (2) that the result portrayed in the advertisement was
6-11 dependent on the facts of that case and that the results will
6-12 differ if based on different facts.
6-13 Sec. 84.026. COPY. A verified copy of each advertisement
6-14 soliciting the use of legal services shall be retained for one year
6-15 by the person who pays for the advertisement.
6-16 (Sections 84.027-84.040 reserved for expansion)
6-17 SUBCHAPTER C. COMPLAINT PROCEDURES AND CIVIL ACTIONS
6-18 Sec. 84.041. STATE BAR COMPLAINT. (a) A person who alleges
6-19 a violation under Subchapter B by an attorney or a referral service
6-20 may file a complaint with the State Bar of Texas.
6-21 (b) A complaint filed under this section must:
6-22 (1) state the name of the advertiser;
6-23 (2) include a description of the advertisement alleged
6-24 to violate Subchapter B; and
6-25 (3) specifically identify the alleged violation.
6-26 (c) The complainant shall serve the advertiser with a copy
6-27 of the complaint on the date the complaint is filed with the state
7-1 bar.
7-2 Sec. 84.042. EFFECT OF VOLUNTARY WITHDRAWAL OF
7-3 ADVERTISEMENT. (a) On receipt of the complaint, the advertiser
7-4 may elect to voluntarily withdraw from broadcast the advertisement
7-5 that is the subject of the complaint. If the attorney or referral
7-6 service elects to withdraw the advertisement, the attorney or
7-7 referral service shall notify the state bar of that fact.
7-8 (b) If the advertisement is withdrawn not later than the
7-9 ninth day after the date on which the complaint is sent to the
7-10 attorney or referral service, the complainant and the state bar may
7-11 not take further action on the complaint.
7-12 Sec. 84.043. REVIEW OF ADVERTISEMENT BY STATE BAR;
7-13 DETERMINATION. (a) The advertiser shall provide a copy of the
7-14 advertisement in question to the state bar for review not later
7-15 than the seventh day after the date of service of the complaint.
7-16 (b) Not later than the 21st day after the date of delivery
7-17 of the advertisement, the state bar shall determine whether
7-18 substantial evidence of a violation exists under Subchapter B. The
7-19 review shall be conducted by an attorney employed by the state bar
7-20 who has expertise in the area of attorney advertising.
7-21 (c) If the state bar determines that substantial evidence of
7-22 a violation exists, the state bar shall notify the advertiser, who
7-23 shall withdraw the advertisement from broadcast. If the
7-24 advertisement is withdrawn within 72 hours after the receipt of the
7-25 notice by the advertiser, the complainant and the state bar may not
7-26 take further action on the complaint.
7-27 Sec. 84.044. CIVIL ACTIONS; LIMITATIONS PERIODS. (a) If an
8-1 advertiser fails to withdraw an advertisement as required by
8-2 Section 84.043, a complainant may bring an action under Section
8-3 84.047 not later than the first anniversary of the date of the
8-4 state bar determination under Section 84.043(b).
8-5 (b) If the advertiser withdraws an advertisement after a
8-6 state bar determination that substantial evidence of a violation
8-7 exists and subsequently rebroadcasts the same advertisement without
8-8 a finding by the trier of fact in an action brought under Section
8-9 84.045 or 84.047 that the advertisement does not violate Subchapter
8-10 B, a complainant may bring an action not later than the first
8-11 anniversary of the date of the rebroadcast.
8-12 (c) On a determination by the state bar that substantial
8-13 evidence of a violation does not exist, a complainant is barred
8-14 from bringing an action under Section 84.047, but may bring an
8-15 action for declaratory relief under Section 84.045.
8-16 Sec. 84.045. DECLARATORY RELIEF. (a) An advertiser that
8-17 was the subject of a complaint and any complainant affected by the
8-18 determination of the state bar under Section 84.043 may bring an
8-19 action for declaratory relief to obtain a judicial declaration of
8-20 whether Subchapter B has been violated and, if applicable, may also
8-21 request injunctive relief.
8-22 (b) Any defense otherwise available at law may be raised for
8-23 the first time in the declaratory relief action, including a
8-24 constitutional challenge.
8-25 (c) An action filed under Section 84.047 is stayed pending
8-26 the resolution of the declaratory relief action.
8-27 (d) The declaratory relief action shall be defended by the
9-1 real party in interest. The state bar may not be considered a
9-2 party to the action unless it elects to intervene in the action.
9-3 (e) If the court declares that the advertisement violates
9-4 Subchapter B, an action may be brought under Section 84.047 if the
9-5 advertiser:
9-6 (1) failed to withdraw the advertisement within 72
9-7 hours of the state bar determination under Section 84.043(b); or
9-8 (2) rebroadcasts the advertisement following the
9-9 decision in the declaratory relief action.
9-10 (f) If the court declares that the advertisement does not
9-11 violate Subchapter B, the advertiser may continue to broadcast the
9-12 advertisement.
9-13 (g) The decision of the court under this section is binding
9-14 on the issue of whether the advertisement is unlawful in any action
9-15 brought under Section 84.047 if that binding effect is consistent
9-16 with the doctrine of collateral estoppel or res judicata.
9-17 Sec. 84.046. OTHER ADVERTISERS. (a) A complaint may be
9-18 brought against an advertiser who is not a member of the state bar
9-19 or a referral service by filing a civil action for a violation of
9-20 Subchapter B. The action may be brought after 14 days' notice to
9-21 the advertiser of the alleged violation by the complainant.
9-22 (b) If the advertiser does not withdraw from broadcast the
9-23 advertisement that is the subject of the notice not later than the
9-24 14th day after the date of service of the notice under Subsection
9-25 (a), the complainant may bring an action under Section 84.047.
9-26 (c) The action must be brought not later than the first
9-27 anniversary of the date of the last publication or broadcast of the
10-1 advertisement that is the subject of the action.
10-2 Sec. 84.047. ENFORCEMENT ACTION; ATTORNEY'S FEES. (a)
10-3 Subject to Section 84.045, a person who violates Subchapter B is
10-4 liable to any resident of this state, with damages not to exceed
10-5 $5,000 for each individual broadcast in violation of Subchapter B.
10-6 (b) Venue under this section is in each county in which the
10-7 advertisement was broadcast.
10-8 (c) In an action under this section the matter shall be
10-9 determined according to the law and procedure relating to the trial
10-10 of civil actions, including trial by jury, if demanded.
10-11 (d) The determination of the state bar under Section 84.043
10-12 is admissible in an action brought under this section.
10-13 (e) The court shall report the name, address, and
10-14 professional license number of any person found in violation of
10-15 this chapter to the appropriate professional licensing agency for
10-16 review and possible disciplinary action.
10-17 (f) The court may award attorney's fees to the prevailing
10-18 party in an action under this section if the court finds that the
10-19 action has resulted in the enforcement of an important public
10-20 interest or that a significant benefit has been conferred on the
10-21 public.
10-22 Sec. 84.048. STATE BAR NOT PARTY. The state bar may not be
10-23 a party or a witness in either a declaratory relief proceeding
10-24 brought under Section 84.045 or a civil action brought under
10-25 Section 84.047. Additionally, no direct action may be filed
10-26 against the state bar challenging the state bar's decision under
10-27 Section 84.043.
11-1 Sec. 84.049. RECORDS; BOND REQUIREMENTS FOR CERTAIN
11-2 LITIGANTS. (a) The state bar shall maintain a record of each
11-3 complaint filed under Section 84.041 for seven years after the date
11-4 the complaint is filed.
11-5 (b) If the state bar determines that an individual
11-6 complainant has filed five or more unfounded complaints within a
11-7 seven-year period, the state bar shall classify that complainant as
11-8 a vexatious litigant for purposes of this section. The state bar
11-9 shall require any person classified as a vexatious litigant to post
11-10 security set by the state bar at an amount that is reasonable to
11-11 cover the costs of considering the complaint. The state bar may
11-12 not consider the complaint filed by that person until the security
11-13 is posted.
11-14 (c) In an action under this chapter that is brought by a
11-15 person classified as a vexatious litigant, the defendant may advise
11-16 the court and trier of fact that the plaintiff is classified as a
11-17 vexatious litigant under this section and may disclose the basis
11-18 for the classification.
11-19 (d) Nothing in this chapter restricts any other right
11-20 available under existing law or otherwise available to a person
11-21 seeking redress for false, misleading, or deceptive advertisements.
11-22 Sec. 84.050. DISCIPLINARY ACTION. A violation of Subchapter
11-23 B by a member of the state bar is grounds for disciplinary action
11-24 by the state bar. In addition to the grounds for the initiation of
11-25 a disciplinary proceeding under a statute or the Texas Disciplinary
11-26 Rules of Professional Conduct, the state bar may begin an
11-27 investigation based on a complaint filed by a person under Section
12-1 84.041. The determination of the state bar under Section 84.043 is
12-2 admissible, but not determinative, in any disciplinary proceeding
12-3 brought as a result of that complaint.
12-4 Sec. 84.051. EFFECT ON OTHER LAW; SEVERABILITY. (a)
12-5 Nothing in this chapter limits or precludes enforcement of:
12-6 (1) another statute;
12-7 (2) a court rule; or
12-8 (3) the Texas Disciplinary Rules of Professional
12-9 Conduct.
12-10 (b) Nothing in this chapter limits the right of advertising
12-11 protected under the constitution of this state or of the United
12-12 States. If any provision of this chapter is found to violate
12-13 either constitution, that provision is severable and the remaining
12-14 provisions are enforceable without the severed provision.
12-15 SECTION 2. This Act takes effect September 1, 1995, and
12-16 applies only to attorney advertising disseminated on or after
12-17 January 1, 1996.
12-18 SECTION 3. The importance of this legislation and the
12-19 crowded condition of the calendars in both houses create an
12-20 emergency and an imperative public necessity that the
12-21 constitutional rule requiring bills to be read on three several
12-22 days in each house be suspended, and this rule is hereby suspended.