By Samson Habte
Ohio ethics rules permit lawyers to use text messages to solicit employment from prospective clients so long as they comply with certain standards that regulate the content of such communications and with several potentially applicable laws, the Ohio Supreme Court's ethics board advised April 5 (Ohio Supreme Court Bd. of Commissioners on Grievances & Discipline, Op. 2013-2, 4/5/13).
The opinion addresses an emerging form of legal marketing. “In the usual scenario,” the board explained, lawyers cull accident or police reports for the cell phone numbers of prospective clients and send text messages that “contain direct solicitations for professional employment.”
These practices, the board said, are generally permissible so long as the lawyer complies with ethics rules concerning advertising generally and electronic solicitation specifically, and with several potentially applicable statutes and regulations.
The board acknowledged that text messaging “may be a novel approach to client solicitation.” However, it added, “our ethical review is actually a straightforward application of the Rules of Professional Conduct.”
Ohio Rule of Professional Conduct 7.2(a) provides that “a lawyer may advertise services through written, recorded, or electronic communication, including public media.”
The board acknowledged that text messages are not expressly referenced in this rule or any other, or in their comments. However, it said, the term “electronic communication” is “generally understood to include text messages,” which could also be considered “written communication[s].”
This reading “is consistent with the forward-thinking commentary” to Rule 7.2, the board said. It pointed to Comment , which provides that “The interest in expanding public information about legal services ought to prevail over considerations of tradition,” and to Comment , which “further states that 'electronic media, such as the internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by [Rule 7.2].”
“Because text messages may be considered both an 'electronic communication' and a 'written communication,'” the board declared, “a plain reading of Rule 7.2(a) indicates that lawyers may use text messages to advertise their services.”
“Although [Rule 7.2] allows text message advertising, further ethical guidance is required,” the board pointed out.
That rule, it explained, states that electronic advertising is “[s]ubject to the requirements of Rules 7.1 and 7.3.”
Some ethics provisions implicated by text solicitations apply to all lawyer advertising, regardless of form or platform, the board noted.
The general prohibition in Rule 7.1 on “false, misleading, or nonverifiable” statements will apply to text messages, it said, as will the universal requirement under Rule 7.2(c) that a communication soliciting employment include the name and address of at least one lawyer responsible for its content.
Similarly, Rule 7.2(d), which states that a lawyer may not seek employment in connection with a matter in which the lawyer does not intend to participate actively, will apply where text messaging solicitations are concerned, it said.
By contrast, the board added, Rule 7.3 addresses narrower issues--the prohibition on direct contact with prospective clients--and “contains more detailed requirements than the general 'false/misleading/nonverifiable' standard contained in [Rule 7.1].”
The opinion identifies “additional requirements that apply to text message advertising by lawyers” under Rule 7.3.
The first pertains to the prohibition on live solicitation. Under Rule 7.3(a), such solicitation can take the form of “in-person, live telephone, or real-time electronic contact” with a prospective client “when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.” The rationale for the restriction, the board added, is the “'potential for abuse' when a layperson is subject to the 'private importuning of the trained advocate in a direct interpersonal encounter.'”
However, the board concluded that text message advertising does not generally constitute live solicitation, which, in the context of electronic communications, is described as “real-time” contact.
The opinion acknowledges that internet chat room communications have been deemed to fall in that category. See, e.g., Florida Ethics Op. A-00-1, 17 Law. Man. Prof. Conduct 125 (revised 2010); Michigan Informal Ethics Op. RI-276 (1996) (noting “immediacy” of interactive chat room communication); Utah Ethics Op. 97-10 (1997) (citing “direct and confrontational nature”); West Virginia Ethics Op. 98-03 (1998) (more likely to be intrusive and persuasive than email or written messages). But see Arizona Ethics Op. 97-04 (1997) (less potentially coercive than in-person contact because potential client has option of not responding); California Formal Ethics Op. 2004-166, 21 Law. Man. Prof. Conduct 58 (whether chat room contact is unethical will depend on context).
But the Ohio panel distinguished text messages from chat room contact. “[A] standard text message is more akin to an email than a chat room communication,” the opinion states. However, the board added, newly emergent “[v]oice texting apps … can be used to create real-time conversations that combine voice and text,” and the use of such technology would change that conclusion.
The board next addressed Rule 7.3(b), which, it said, “states that lawyer solicitations are impermissible if the prospective client has requested that the lawyer not solicit them or the solicitation 'involves coercion, duress, or harassment.'”
The panel noted this provision requires a lawyer to “refrain from additional solicitations if the prospective client does not respond” to an initial message.
The board also advised lawyers to “be sensitive to the fact that a text message may be perceived as more invasive than an email.”
The opinion cautions that Rule 7.3(c) imposes additional content requirements when solicitations are directed toward persons whom the lawyer reasonably believes to be in need of legal services in a particular matter, as opposed to randomly sent messages that are not tied to knowledge regarding the prospective client's potential needs. In such instances, the committee said, the lawyer must:
• state how she “became aware of the person[s] and their legal needs” (e.g., from an accident report or court docket);
• refrain from predetermined evaluations of the matter; and
• “'conspicuously' include the words 'ADVERTISING MATERIAL' or 'ADVERTISEMENT ONLY' in the text … and at the beginning and end of any 'recorded or electronic communication.'”
Moreover, if the prospective client is a defendant in a civil action, the board added, Rule 7.3(d) requires the lawyer to “verify that the [person] has been served with notice of the action … by consulting the court docket” before sending a text message. This requirement does not apply if the prospective client is a potential or actual bankruptcy debtor, the board added.
Finally, Ohio's Rule 7.3(e) provides that solicitations sent within 30 days of an accident or disaster giving rise to a potential injury or wrongful death claim must be accompanied by this “Understanding Your Rights” statement:
THE SUPREME COURT OF OHIO, WHICH GOVERNS THE CONDUCT OF LAWYERS IN THE STATE OF OHIO, NEITHER PROMOTES NOR PROHIBITS THE DIRECT SOLICITATION OF PERSONAL INJURY VICTIMS. THE COURT DOES REQUIRE THAT, IF SUCH A SOLICITATION IS MADE, IT MUST INCLUDE THE ABOVE DISCLOSURE.
This statement, the board added, must “appear in the body of the lawyer's communication.” It cannot be provided via a hyperlink to a website, the board declared, notwithstanding the fact that limitations on the number of characters available in a single text message might “cause the message to split into multiple messages or fail to transmit in its entirety.”
The board also identified a few “practical considerations for a lawyer who chooses to directly solicit prospective clients” by text message:
First, the text message should not create a cost to the prospective client. … If the lawyer is unable to verify that a text message solicitation will not result in a cost to the prospective client, he or she should employ “Free to End User” or similar technology, by which the initiator of the text message is responsible for the cost of both delivery and receipt.
Second, the lawyer should be mindful of the age of the recipient of the text message. … [A]ccident and police reports may contain cellular phone numbers that belong to minors … and lawyers who obtain cellular phone numbers from such reports should attempt to verify that the numbers do not belong to minors before sending a text message solicitation … [because] the Board discourages the solicitation of minors via text message.
“Finally,” the board cautioned, “lawyers must use due diligence to ensure that any text message advertisement or solicitation complies with the applicable federal and state telemarketing laws.” Those potentially applicable laws and regulations, the board said, include the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), and the Do Not Call Registry.
Full text at http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2013/Op_13-002.pdf.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
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