SB 66 — Prohibiting certain misleading lawsuit advertising practices

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 66 By Senator SwopeSwope, [Introducedoriginal Januarysponsor 9,[Originating 2019;in the Committee on the Judiciary;

ReferredReported toon theFebruary Committee8, on2019] the  Judiciary]  A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article designated §47-28-1,§46A-6N-1, §47-28-2,§46A-6N-2, §47-28-3,§46A-6N-3, and §47-28-4,§46A-6N-4, all relating to prohibiting certain misleading lawsuit advertising practices;

ARTICLE 28.6N.

§47-28-1.§46A-6N-1.

This article mayshall be known and cited as the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Act.

§47-28-2.§46A-6N-2.

— A person engages in a deceptive trade practice if in advertising legal services the person does any of the following:

(1) Fails to disclose at the outset of the advertisement:

(2) Presents an advertisement as a “medical alert,”alert”, “health alert,”alert”, “consumer alert,”alert”, “public service announcement,”announcement”, or similar term;

(4) Uses 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 a government agency;

— (1) An advertisement for legal services soliciting clients who may allege an injury from a prescription drug approved, cleared, or the subject of a monograph authorized by the U.S.United States Food and Drug Administration shall include the following warning:

Food and Drug Administration shall include the following warning:

Discontinuing a prescribed medication without your doctor’s advice can result in injury or death.”death”. (2) An advertisement for a lawsuit soliciting clients who may allege an injury from a prescription drug or medical device approved, cleared, or the subject of a monograph authorized by the U.S.

(2) An advertisement for a lawsuit soliciting clients who may allege an injury from a prescription drug or medical device approved, cleared, or the subject of a monograph authorized by the United States Food and Drug Administration shall disclose that the drug or medical device remains approved by the U.S.United States Food and Drug Administration, unless the product has been recalled or withdrawn.

Food and Drug Administration, unless the product has been recalled or withdrawn.

— Any words or statements required by this section to appear in an advertisement must be presented clearly and conspicuously.

— For purposes of this section:

(1) “Legal Advertisement”advertisement” means a solicitation for legal services through television, radio, internet (including a domain name), newspapernewspaper, or other periodical, outdoor display, or other written, electronic, or recorded communications.

(2) “Person” includes anany attorney,person, lawentity, firm,attorney, or individuallaw entityfirm that advertises legal services or identifies potential clients for attorneys or law firms.

§47-28-3.§46A-6N-3.

— A person shall not use, cause to be used, obtain, sell, transfer, or disclose to another person without written authorization protected health information for the purposepurposes of soliciting an individual for legal services.

— For purposes of this section:

(1) “Person” includes anany attorney,person, lawentity, firm,attorney, or individuallaw entityfirm that solicits individuals for legal services or identifies potential clients for attorneys or law firms;firms.

(2) “Protected health information” has the meaning given suchto the term in section45 106.103C.F.R. of title 45, Code of Federal Regulations;

and§160.103. (3) “Solicit” means offer to provide legal services by written, recorded, or electronic communication or by in-person, telephone, or real-time electronic contact.

(3) “Solicit” means offer to provide legal services by written, recorded, or electronic communication, or by in-person, telephone, or real-time electronic contact.

— (1) A violation of this section isconstitutes a violation of West Virginia’s health privacy laws or West Virginia Code §46A-6-101 et seq.

(2) In addition to any other remedy provided by law, a person who willfully and knowingly violates this sectionis is:shall be guilty of a misdemeanor and, upon conviction thereof, be confined in jail not more than one year, be fined $1,000, or both.

(i) Guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than one year, or be fined $1,000, or both;

and (ii) If the offense is committed with the intent to sell, transfer, or use protected health information for financial gain, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not more than 10 years, or be fined not more than $250,000, or both.

— This sectionprovision doesshall not be construed to apply to the use or disclosure of protected health information to an individual’s legal representative, in the course of any judicial or administrative proceeding, or as otherwise permitted or required by law.

§47-28-4§46A-6N-4. Authority of judiciary or State Bar to regulate practice of law.

NothingAuthority in this article limits or otherwise affects the authority of the judiciary or theState LawyerBar Disciplinary Board to regulate the practice of law,law. enforce the West Virginia Rules of Professional Conduct, or discipline persons admitted to the bar.

 Nothing NOTE:in this act shall limit or otherwise affect the authority of the judiciary or the Lawyer Disciplinary Board to regulate the practice of law, enforce the West Virginia Rules of Professional Conduct, or discipline persons admitted to the bar.

The purpose of this bill is to prevent the deceptive use of lawsuit advertising and solicitation by prohibiting people from engaging in those activities and providing criminal penalties.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.