Category Archives: Advertising and solicitation with text messages

Florida Bar Board of Governors considers advertising rule amendments on use of “expert” and “specialist” and approves rule regarding faxes, telegrams and online chatrooms

Hello and welcome to this Ethics Alert blog which will discuss the recent Florida Bar Board of Governors meeting wherein the BOG discussed rule changes to comply with a Florida federal district court judge’s Order finding that Bar rule which prevented non-certified lawyers from stating they have expertise or specialize in an area of law were unconstitutional and enjoining their enforcement.  The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcing the rule.  The case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The injunction order is attached and is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

According to a March 1, 2016 Florida Bar News article, the chair of the Board Review Committee on Professional Ethics told the BOG at the meeting that the committee is considering several potential amendments; however, it has not agreed on a single version of the amendment. The committee chair said that the committee expected to make a recommendation at the board’s March 10, 2016 meeting; however, it is not clear whether the topic was discussed at that meeting.  The Florida Bar News article is here:  http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/Articles/A1C3E4D1089C7B3785257F61004E782D

The BOG review was started after a September 30, 2015 Order by U.S. Northern District of Florida Judge Robert L. Hinkle in a lawsuit filed against The Florida Bar by the Searcy, Denney, Scarola, Barnhart & Shipley, P.A. law firm.  The lawsuit challenged Bar rules which permit only Florida Bar (or the equivalent) certified lawyers to hold themselves out as “experts” or “specialists” in their advertisements.  The Order stated non-certified lawyers and law firms could have expertise in an area even if they were not certified and that the regulation prevented lawyers from claiming expertise in areas for which there is no available Bar certification and enjoined the Bar from enforcing the rule as applied.

According to an article in the October 15, 2015, Florida Bar News, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers.  ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”

The BOG also approved the Board Review Committee on Professional Ethics’ recommendation to allow lawyers to communicate directly with potential clients using facsimiles, telegrams, and in online chatrooms as long as the lawyers follow the Florida Bar rules related to direct mail communications/solicitations.  According to Bar Ethics and Advertising Counsel Elizabeth Tarbert, any solicitation made by the lawyer, including  within a chatroom, must be preapproved by the Bar and must also comply with any applicable state and federal laws on solicitations using those methods of transmission.

The direct communications must be characterized as “advertisements” and tell the recipient to disregard them if they already have an attorney in the matter. The amendments were revised for uniformity after the BOG recently decided that direct text communications were permissible under Bar rules.  The rule amendments will now be sent to the Florida Supreme Court for review and potential approval.

Bottom line:  The BOG will hopefully approve a Bar Rule amendment which will provide constitutionally compliant guidance to lawyers regarding when they can state that they are “experts” or “specialists”, even if they are not certified by The Florida Bar (or the equivalent).  It is most likely that the rule will have minimum requirements such as the number of years of practice and experience, among other potential criteria.  Stay tuned……and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and 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 Board of Governors finds that unrequested texts to prospective clients on specific matters are not prohibited solicitations

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent and somewhat surprising decision of the Florida Bar’s Board of Governors to reverse Statewide Advertising Committee’s opinion that texts to prospective clients on specific matters would be solicitations in violation of the Bar rules.

As I previously reported in the June 8, 2015 Ethics Alert blog, the Florida Bar’s Standing Committee on Advertising issued an opinion in May 2015 stating  that text messages to a prospective client regarding a specific matter were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.

According to a recent Bar News article, The Florida Bar’s Board of Governors reversed the Advertising Committee’s opinion at its July 24, 2015 meeting and found that a law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and e-mail communications.  The Florida Bar Rules would require that the first line of the text state that the communication is “advertising” and, if the text is a communication about a specific matter, it must have language stating that if the recipient already has an attorney, he or she should ignore the text.  The text must also disclose how the law firm got the recipient’s name.

The law firm which requested the advertising opinion stated that it will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if the recipient would pay for it under his or her mobile phone plan.  The decision passed with a voice vote with some dissenters.

Bottom line:  This is a somewhat surprising reversal of the Bar’s Statewide Advertising Committee’s opinion by the BOG that texts to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules; however, it opens the door for lawyers to use these types of communications.  Ahh…the advancements of the digital age.

Be careful out there!

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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 Statewide Advertising Committee finds that texts to prospective clients on specific matters are prohibited solicitations

Hello everyone and welcome to this Ethics Alert which will discuss the recent decision of the Florida Bar’s Statewide Advertising Committee to reject a plan by a law firm to obtain cell telephone numbers and send texts to prospective clients on specific matters since the text messages would be solicitations in violation of the Bar advertising rules.

The issue of whether a text message to a prospective client regarding a specific matter was recently reviewed by the Florida Bar’s Standing Committee on Advertising at its May 12, 2015 meeting.  The issue was reviewed after a criminal defense firm requested authorization to send text messages to prospective clients and guidance on its plan to use a computer system to send text messages regarding the firm’s legal services to potential clients who were arrested.  The law firm argued that a telephone number for text messaging is the functional equivalent of an e-mail address which are permitted communications under the Florida Bar Rules.

Florida Bar Advertising Rule 4-7.18 states that (with exceptions) a lawyer may not solicit professional employment from a prospective client by telephone or other communication directed to a specific recipient.  The Telephone Consumer Protection Act (TCPA) also prohibits telephone solicitations and the use of automated telephone equipment to send SMS text message and faxes.

The law firm’s plan was to use a daily list provide by the county clerk to obtain e-mail addresses and mobile telephone numbers of individuals arrested the previous day.  This information would be entered into an automated system which would send text messages offering its legal services.  The firm stated that it would only send a text if an e-mail was unavailable and that there would be an “opt out” provision to allow the recipient to decline future communication.

The Florida Bar Advertising Department’s lawyers had voted unanimously that the proposed text messages were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.  The law firm appealed the decision to the Florida Bar’s Standing Committee on Advertising.  The Standing Advertising Committee voted 6-1 against the proposal.  The law firm requested review by the Florida Bar’s Board of Governors and the review has been scheduled for the Board’s July 2015.

Bottom line:  This is another example of analysis and application of new digital media to the Bar advertising rules.  In this case, The Florida Bar’s Statewide Advertising Committee decided that text messages to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules.  Expect more of these reviews and issues in the future and stay tuned for the decision of the Board of Governors on this one.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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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Ohio Ethics Advisory Opinion states that Ohio lawyers are not prohibited from soliciting potential clients via text messages

Hello everyone and welcome to this Ethics Alert blog which will discuss the 2013 Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages with certain caveats. The Advisory Opinion is online here: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2013/Op_13-002.pdf

The Ohio Board of Commissioners on Grievances and Discipline issued Advisory Opinion 2013-12 in April 2013.  The advisory opinion states that lawyers are permitted to use text messages to solicit clients if the texts comply with all Ohio Bar rules, including lawyer advertising and other general Bar rules.  The opinion states that lawyers sending the text messages must pay all of the costs of the texting, cannot make false, misleading, or non-verifiable statements, or engage in coercion, duress, or harassment.

The advisory opinion states that “(t)he Board’s view is that a standard text message is more akin to an email than a chat room communication.  Accordingly, a typical text message is not a ‘real time’ electronic contact.”  The significance of this analysis is that, if the text was considered to be real time contact, such solicitations would be prohibited.

The advisory opinion also states that, pursuant to Ohio Bar rules, “the text message must notify the recipient of the means by which the lawyer learned of the potential need for legal services, for example, from accident reports or a court docket, and include ‘ADVERTISING MATERIAL’ or ‘ADVERTISEMENT ONLY’ at both the beginning and ending of the message. These descriptors must be conspicuous and in capital letters as designated in the rule. The text message also cannot include an evaluation of the case or a prediction of the outcome.”

Bottom line:  The opinion’s finding that text message solicitations are “more akin to” a chat room and are not “real time” electronic communications means that Ohio lawyers can send text messages to potential clients, including potential personal injury clients, if the lawyer complies with the Ohio Bar rules

Let’s 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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