Need a Lawyer? Check Your Text Messages
By Natasha Saggar Sheth, Litigation News Associate Editor – August 19, 2013

With changing technologies come new and better forms of communication and new opportunities for marketing. In an opinion of first impression, the Ohio Supreme Court Board of Commissioners on Grievances and Discipline deemed text messaging a permissible form of attorney advertising under the state’s Rules of Professional Conduct. Supreme Court of Ohio Board of Commissioners on Grievances & Discipline, Opinion 2013-2 [PDF].

Nature of a Text Message
Generally—at least in the “usual scenario” described by the Board—“lawyers obtain the cellular phone numbers of prospective clients from accident or police reports” and then send them text messages offering legal services. Without commenting on the propriety of this method of sourcing potential new business, the Board first examined the nature of a text message. First and foremost, a text message is a written and electronic communication, both of which are permissible forms of attorney advertising per Ohio Rule of Professional Conduct 7.2(a) [PDF].

But the inquiry does not end there. All lawyer advertising must also comply with Ohio Professional Conduct Rules 7.1 and 7.3. Rule 7.1 prohibits any attorney advertising containing false, misleading, or non-verifiable information. Under Rule 7.3(a), a lawyer may not solicit professional employment using real-time electronic contact. Here, the Board acknowledges that “most text messages are received on cellular phones, which are often carried on one’s person,” thus “lawyers should be sensitive to the fact that a text message may be perceived as more invasive than an email.” Nonetheless, the Board determined that text messaging is more akin to email (which is a permissible form of advertising) than it is to chat room communication (which is not).

Rule 7.3(b) prohibits unwanted advertising where a prospective client has requested not to be solicited. This section also prohibits solicitation involving coercion, duress, or harassment. On this point, the Board suggests, but does not require, that attorneys refrain from sending additional text message advertising if the prospective client does not respond.

Requirements, Limitations, and Words of Caution
Under Rule 7.3(c), attorney advertising must clearly be identifiable as such and any solicitation must notify the recipient of the means by which the lawyer learned of the potential need for legal services. Where a solicitation occurs within 30 days of an accident or disaster, Rule 7.3 further requires that the advertising contain a prescribed statement laying out the prospective client’s rights. This statement must be written out in the body of the message; a hyperlink to the language will not suffice. Finally, the attorney must include his or her name and office address in the solicitation.

Under these requirements, a text message from an attorney in Ohio to a potential new client might, at minimum, look like this:

The Board also offers additional considerations to attorneys seeking to advertise their services by text message. First, many users are charged for each text message that is sent and received. The Board recommends, but does not require, that attorneys send text solicitations using technology that makes the message free to the end user. Second, the Board recommends that attorneys attempt to verify that their prospective client is not a minor. Finally, the Board notes that lawyers should be diligent to ensure that their text message solicitations comply with the vast array of federal and state laws, rules, and regulations governing such communications.

Surprising Aspects of the Decision
Arguably the Board’s analysis of the use of text message advertising is a logical extension of the established rules of professional conduct to emerging technologies. But while the opinion is clear on the letter of the law, it fails to fully address some of the practical and professional implications of attorneys’ use of text messaging.

For example, some are surprised that the Board did not take a stance on the threshold issue of the means by which some attorneys may be gathering cell phone numbers of prospective clients. “While the behavior of reviewing police and accident reports for potential new clients may be legal, it should be discouraged to preserve the dignity of the profession,” says Stephen T. LaBriola, Atlanta, chair of the Attorney Advertising Subcommittee of the ABA Section of Litigation’s Ethics & Professionalism Committee. “Otherwise, this could be seen as the digital era of ambulance chasing.”

Questions also arise concerning whether a text message can fairly be considered closer to an email than a real-time electronic communication, such as a chat or instant message, according to LaBriola. Unlike an email or a written letter, where the recipient can clearly see who the sender is and choose to ignore the message, a text message generally buzzes or otherwise disturbs the recipient and has to be opened and viewed before it can be dismissed.

Available but Impractical
Ultimately, “this decision is making it very impractical for an attorney to send out an unsolicited communication like this,” says Damian E. Thomas, Miami, cochair of the Section of Litigation’s Solo and Small Firms Committee. Thomas also doubts that recipients of attorney text message advertising would actually respond positively to the solicitation. “A prospective client might respond more readily to a written communication or a letter than a text from an unknown source.”

Considering all the requirements set forth by the Board and the warnings of additional state and federal regulations to be considered, the risks here may outweigh the rewards, opines Thomas—especially for solo practitioners and small firms, who are more likely to employ this method of advertising.

Should text message advertising become a widespread practice among attorneys, states may reexamine its use. Indeed, in California, text messaging is already prohibited as a form of solicitation.

Keywords: advertising, ethics, professional conduct, text messaging

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