Monthly Archives: April 2013

Ohio Ethics Opinion states that lawyers may use text messages to solicit clients if all lawyer advertising rules are followed

 

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Ohio Ethics Opinion which states that the Ohio Bar rules permit lawyers to use text messages to solicit employment from prospective clients if they comply with the content and disclaimer requirements of the Ohio lawyer advertising rules.  The opinion is Ohio Supreme Court Bd. of Commissioners on Grievances & Discipline, Op. 2013-2 (4/5/13).  The ethics opinion is at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2013/Op_13-002.pdf

The opinion describes the typical text message solicitation as follows:  “(i)n the usual scenario…lawyers obtain the cellular phone numbers of prospective clients from accident or police reports (and) then sends SMS text messages…directly to the cellular phone numbers indicated in the reports. The messages contain direct solicitations for professional employment.  Given the limited number of characters usually available in a standard text message, the message contains very general information about the lawyer and his or her legal services.  Often the message will contain an internet link to a website that contains additional advertising material.”

 The opinion states that text messaging “may be a novel approach to client solicitation”, but “our ethical review is actually a straightforward application of the (Ohio) Rules of Professional Conduct.”  Ohio Bar Rule 7.2(a) provides that “a lawyer may advertise services through written, recorded, or electronic communication, including public media.”  The opinion also points out that text messages are not expressly referenced in any Ohio Bar Rule or comments to the rules; however, electronic communication” is “generally understood to include text messages,” which could also be considered “written communication(s).”  This “is consistent with the forward-thinking commentary” to Rule 7.2 but “further ethical guidance is required…”

 

According to the opinion, Ohio Bar Rule 7.1 (which prohibits “false, misleading, or nonverifiable” statements) applies to text messages along with the 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.  Ohio Bar Rule 7.3 prohibits direct contact with prospective clients and “contains more detailed requirements than the general ‘false/misleading/nonverifiable’ standard contained in (Ohio Bar Rule 7.1).’”

 

The opinion identifies “additional requirements that apply to text message advertising” under Ohio Bar Rule 7.3.  The first is the prohibition on live solicitation and, under Ohio Bar Rule 7.3(a), live 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 reason for the restriction is the “potential for abuse” when a potential client is subject to the “private importuning of the trained advocate in a direct interpersonal encounter”; however, text message advertising does not generally constitute live solicitation, which is described as “real-time” contact.

 

The opinion states that internet chat room communications/solicitations are “real-time” contact and cites to Florida Bar Ethics Op. A-00-1; Michigan Informal Ethics Op. RI-276 (1996); Utah Ethics Op. 97-10 (1997); and West Virginia Ethics Op. 98-03 (1998), which agree with this analysis; however, Arizona Ethics Op. 97-04 (1997) states that such contact is less potentially coercive than in-person contact because the potential client has option of not responding and California Formal Ethics Op. 2004-166 states that whether chat room contact is unethical will depend on context.  The opinion distinguishes text messages from chat room contact. “(A) standard text message is more akin to an email than a chat room communication’ but “(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 opinion next addresses Ohio Bar Rule 7.3(b), which “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’” and notes that this provision requires a lawyer to “refrain from additional solicitations if the prospective client does not respond” to an initial message and advises lawyers to “be sensitive to the fact that a text message may be perceived as more invasive than an email.”

 

The opinion cautions that Ohio Bar 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 those “random” communications, 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.’”

 

 If the prospective client is a defendant in a civil action, Ohio Bar 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.  Ohio Bar Rule 7.3(e) also 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. 

 

The statement must “appear in the body of the lawyer’s communication” and not via a hyperlink to a website, 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.” 

 

Finally, the ethics opinion identifies “practical considerations for a lawyer who chooses to directly solicit prospective clients” by text message:

 

 

1.   the text message should not create a cost to the prospective client and 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. 

 

2.  the lawyer should be aware 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.” 

 

3.  lawyers must use “due diligence” to ensure that any text message advertisement or solicitation complies with the applicable federal and state telemarketing laws.”

 

 

Bottom line: This is one of the few state ethics opinions (if not the only one) addressing ethics issues related to lawyer text message solicitation and provides useful analysis and tips regarding this practice.  The revised Florida Bar Advertising Rules are effective May 1, 2013 and Florida Bar Rule 4-7.11(a) states “unless otherwise indicated, this subchapter applies to all forms of communication in any print or electronic forum including, but not limited to, newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media. The terms “advertising” and “advertisement“ as used in chapter 4-7 refer to all forms of communication seeking legal employment, both written and spoken.”

 

Be careful out there!   

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”

Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”.

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Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent draft Proposed Advisory Opinion A-12-1 by the Bar’s Standing Committee on Advertising which cautions lawyers on certain search engine optimization (SEO) tactics for websites, including using “hidden text” and using another law firm’s name in a website page “metatag”.  The proposed opinion is at: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/9300b4f07c0c029785257b39004717f1!OpenDocument

According to the proposed advisory opinion, “(w)ebsites used to promote a lawyer or law firm are subject to the lawyer advertising rules. Rule 4-7.11(a).  Lawyers are prohibited from engaging in ‘deceptive or inherently misleading advertising.’  Rule 4-7.13. Included within the prohibition is any advertisement that ‘implies the existence of a material nonexistent fact.’ Rule 4-7.13(a)(3). The Committee is of the opinion that certain website content and the use of certain internet search engine optimization techniques can be false, deceptive or misleading conduct that is prohibited by Rule 4-7.13. Examples include ‘hidden text’ or ‘meta tags’ that use another lawyer’s or law firm’s name without a proper purpose, a false representation that a law firm has an office in a particular location when the lawyer does not have an office at that location, or representing that a lawyer handles cases in an area of practice that the lawyer or firm does not practice.

“The intent of this opinion is to educate attorneys on the prohibited use of false, deceptive and/or misleading content or techniques in the design and optimization of their websites and to provide some examples. First, it is entirely acceptable to employ website design, content and search engine optimization techniques in law firm websites as a method of marketing legal services and educating the public about a particular law firm, its attorneys, and its practice. In doing so, law firms must take care to comply with the Rules Regulating the Florida Bar in the design, content and optimization of their websites. This advisory opinion is intended to provide some guidance to attorneys in this rapidly changing media.”

“One specific example of false, deceptive and misleading search engine optimization techniques would be the use of ‘hidden text’ that is not visible to the human eye but is visible to search engines. Such ‘hidden text’ would almost always be inherently false and misleading. Major search engines such as Bing and Google discourage the use of hidden text as a form of spam used to ‘artificially inflate search engine ranking,’ consider it a form of deception, and lower the rankings of websites who use hidden text.”

“Another example of a false, deceptive or misleading technique would be the use of another lawyer’s name or the name of another law firm in a firm’s website when the firm has no legitimate connection, relationship or history with that lawyer or law firm and the reference is purely intended to unfairly manipulate search engines in favor of the firm’s website by using the name of another firm or lawyer. Yet another example of prohibited techniques would be the use of false, deceptive or misleading meta tags on a website. Like hidden text, meta tags are not visible to viewers, but search engines read meta tags, which are properly used to optimize internet search result positions. While the use of meta tags is not prohibited, the use of false, deceptive or misleading meta tags is prohibited.”

“The same analysis applies when lawyers purchase advertising on a search engine keyed to specific words or phrases, e.g. buying Google Adwords. Lawyers may not purchase the name of another lawyer or law firm as a key word in search engines so that the lawyers’ advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term.”

“The above are merely examples of the type of website design and optimization techniques that are considered false, deceptive and/or misleading. Lawyers may not use any content or text, including but not limited to hidden text or meta tags, to deceive or mislead the public. Because lawyers themselves often do not construct their own websites, lawyers should take steps to assure that their website designers and optimizers are aware of the Rules Regulating the Florida Bar and that they use techniques and content that are neither false nor misleading and that conform to ethical practices. The Committee strongly encourages lawyers to provide copies of the lawyer advertising rules to their website designers.”

According to the Bar’s notice, the committee will consider any comments received at its meeting during The Florida Bar’s Annual Convention on Thursday, June 27 at 2 pm at the Boca Raton Resort & Club.  Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why The Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Any comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.

Bottom line: This proposed advertising advisory opinion is not final and if you would like to comment on its content, you can direct it to Elizabeth Tarbert as indicated above.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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Georgia Supreme Court says reprimand is insufficient when, inter alia, a lawyer uses confidential client information to rebut client’s negative reviews on the internet

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Georgia disciplinary opinion rejecting a proposed reprimand for a lawyer who, inter alia, posted confidential client information on the internet in response to the client’s negative review on “consumer websites”.  The case is In the Matter of Margrett A. Skinner, Case No. S13Y0105 (March 18, 2013).  The opinion is at: http://www.gasupreme.us/sc-op/pdf/s13y0105.pdf

According to the opinion, a client fired the lawyer and posted negative reviews about her on “consumer websites”.  In response, “(the lawyer) posted on the internet personal and confidential information about the client that (the lawyer) had gained in her professional relationship with the client.”  When the former client complained to the Georgia Bar, the lawyer was charged with a number of alleged ethics violations. In addition to the Rule 1.6 confidentiality violation, the Bar complaint accused the lawyer of neglecting a legal matter, failing to keep the client reasonably informed of the status of her case, failing to provide an itemized statement, and initially refusing to refund unearned fees.

The lawyer responded to the Bar complaint by filing a petition in which she admitted violating Georgia Bar Rules related to revealing client confidential information and “sought imposition of a Review Panel Reprimand for her infraction.”   The Bar counsel and a special master appointed to review the disciplinary case believed that the sanction was appropriate and recommended that her petition be accepted; however, the opinion cited the lack of a factual record and the novelty of the disciplinary issue.  The opinion did recognize mitigating factors in the case, including the lawyer’s expression of remorse, the “emotional and physical effects of her own surgery and the deaths of both her parents,” and the fact that the lawyer ultimately refunded the client’s fee.

The opinion stated that “(a)mong other things, we note that the record does not reflect the nature of the disclosures (except that they concern personal and confidential information) or the actual or potential harm to the client as a result of the disclosures.”  The court also stated that it “has not been faced with a violation of Rule 1.6 by means of internet publication,” and that in analogous proceedings three other jurisdictions have handed out a harsher sanction than a reprimand.

The cases cited in the opinion included In re: Disciplinary Proceedings against Kristine Peshek, Case No. No. 2011AP909–D, 798 N.W.2d 879 (Wis. 2011), a reciprocal discipline case, wherein the Wisconsin Supreme Court followed the Illinois Supreme Court and imposed a 60-day suspension on a former public defender “who, among other things, had published in a blog related to her legal work confidential information about her clients and derogatory comments about judges, and had included information from which the identity of the clients and the judges could be discerned.”  According to the opinion, “(t)he Wisconsin Supreme Court noted that Peshek’s blogging was a mechanism to cope with the stress that followed a “traumatic event” in which a client punched her in the face in open court, resulting in “a concussion and other physical injuries.”  I discussed this case in my WordPress.com Ethics Alert blog which is at https://jcorsmeier.wordpress.com/2012/02/29/illinois-lawyer-receives-60-day-suspension-for-disparaging-judges-violating-client-confidentiality-on-blog-and-failing-to-correct-clients-false-sworn statements/

The opinion also cited In re Quillinan, 20 DB Rptr. 288.  In that 2006 case, the Oregon Disciplinary Board suspended a lawyer for 90 days for, among other things, posting to a bar group’s listserv the “personal and medical information about a (workers’ compensation) client whom she named” and whom she described as “difficult” and unwilling to accept a “very fair” offer from an insurer.  The opinion rejected the lawyer’s petition for a reprimand which it called “the mildest form of public discipline authorized” by the Bar Rules, and remanded the case for further proceedings.

Bottom line:  This is no April Fool’s joke but is another example of a growing list of cases where lawyers have gotten into disciplinary difficulty by making public comments on the internet, in this case by apparently posting confidential client information rebutting a client’s negative reviews on “consumer websites”.  Don’t go there…

…and be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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