October 19, 2017 Top Story

Can Attorneys Solicit Clients Via Text Message?

Decisions show trend permitting attorney text message advertising

Martha L. Kohlstrand

Lawyers may advertise via a text message service that permits the user to initiate live telephone communications, provided they comply with the Rules of Professional Conduct, one ethics opinion holds.

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The opinion indicates a willingness to permit attorneys to use new technology to reach out to potential clients and foreshadows an overall broadening and simplification of Rule 7, say ABA Section of Litigation leaders.

Lawyers May Use Opt-In Text Messaging Service to Advertise

In an opinion issued by the North Carolina Bar Association stated that lawyers may advertise via an opt-in text messaging service called "ABC Texting." The bar association looked at three questions. First, it considered whether an attorney may send potential clients a text message through ABC Texting asking, "Injured at work? We can help" along with a link to the attorney's website.

The opinion concluded that the attorney may do so, so long as the text message is "truthful and not misleading" per Rule 7.1; complies with Rule 7.2 (requiring the attorney to pay the costs of advertisement and include the law firm's name and address) and 7.3 (limiting direct contact with potential clients for the purpose of soliciting business); and obeys all applicable federal and state laws, rules and regulations. The NCBA reasoned that because ABC Texting does not exclusively send attorney advertising, this type of advertising is similar to a billboard directed to the general public.

Finding approval, the NCBA next considered whether the attorney may send the following set of text messages through ABC Texting:

ABC Texting: Have you or someone you know been injured at work? If so, type YES.
Subscriber: YES.
ABC Texting: Lawyer can help. May we contact you at this number? If so, type YES.
Subscriber: YES.
ABC Texting:
Thank you. A representative will contact you soon.

If the subscriber responds YES to both questions, the lawyer will contact the subscriber directly.

According to the NCBA, the above exchange does not violate Rule 7.3(a), which prohibits live telephone or real time electronic contact, because the subscriber voluntarily registered with ABC Texting and knew he or she would receive advertisements. Moreover, the subscriber may decline the lawyer's offer to contact the subscriber. The exchange was also deemed acceptable if the second message from ABC Texting included the lawyer's phone number and an invitation to call the lawyer.

However, these messages may be confusing to consumers, worries Basheer Y. Ghorayeb, Dallas, TX, cochair of the Section of Litigation's Ethics and Professionalism Subcommittee. "The messages only ask the client if they have an injury and want help…. The word 'lawyer' in the message 'Lawyer can help' is supposed to be replaced with the name of the lawyer or law firm," and a mere first and last name may not alert the client to the fact that a lawyer is seeking to contact him or her. This "violates the intent of the model rules, which is to protect clients from this type of phone call," Ghorayeb cautions.

Ohio and Florida Have Issued Similar Opinions

Other jurisdictions have dealt with similar questions regarding attorney text messaging. For example, a 2013 Ohio ethics opinion held that attorneys may advertise via text messages so long as they are not misleading and include the name and address of the attorney responsible for the message's content. Certain other disclaimers must be made if texting a potential personal injury client within 30 days of an accident.

In 2015, the Florida Bar Association's Board of Governors reversed an earlier Standing Committee on Advertising's opinion, which said that text messages to a prospective client were prohibited. Instead, the Board of Governors found that a law firm can send text messages to prospective clients so long as the messages comply with the rules on written and email communications. Moreover, the first line of the text must indicate the message is "advertising" and the message must disclose how the attorney got the recipient's name. If the communication is about a specific matter, the text message must state that if the recipient already has an attorney, he or she should ignore the message.

What Does This Mean for Attorneys?

Certainly, a new type of attorney advertising has many potential implications. "Most firms depend on advertising in various forms, especially if they are a consumer-based practice," says Keith Swisher, Phoenix, AZ, chair of the Section's Subcommittee on Attorney Advertising. He adds that he often gets questions from attorneys wondering about text message advertising, and the opinion may alleviate their concerns because it provides some clarification on what is acceptable. Scott E. Reiser, Roseland, NJ, cochair of the Section's Ethics & Professionalism Committee, cautions that with text message advertising, "attorneys still must be truthful and not misleading." Swisher agrees, pointing out that the opinion still includes certain requirements of what must be included in a text message. However, Swisher notes it shows a growing acceptance of text messaging services as a means of attorney advertising.

Simplifying Rule 7: A Nationwide Trend?

The North Carolina, Ohio, and Florida opinions on attorney text messaging may reflect a growing interest in simplifying the Rules. "There is a movement afoot to simplify Rule 7 and make it applicable to more situations," explains Reiser. The proposal was presented at the ABA's mid-year meeting, he says, and it is currently out for comments. Indeed, Swisher notes, the ethical rules tend to change with the times. "Since Bates v. State Bar of Arizona held attorney advertising could be protected by the First Amendment," he says, "each iteration of the Rules has made attorney advertising easier, with fewer hoops to jump through."


Martha L. Kohlstrand is an associate editor for Litigation News.

Keywords: attorney advertising, text messaging, ethics, Rule 7

Hashtags: #attorneyadvertising, #rule7, #northcarolinabarassociation, #ncba

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