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