Category Archives: Lawyer advertsiing twitter advertising and solicitation

Florida Bar’s Board of Governors approves guidelines for advertising past results and revokes informal advisory opinion stating that LinkedIn violates Bar Rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent decisions of the Florida Bar Board of Governors, including approval of guidelines for advertising past results and revoking the staff advisory opinion stating the LinkedIn violates Bar Rules.  The Guidelines for Advertising Past Results are attached and are here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/FB68CB88389B9FC785257C430053B5F9/$FILE/guidelines%20past%20results.pdf?OpenElement

The Florida Bar’s Board of Governors (BOG) met on December 13, 2013 and, based upon a recommendation of the BOG Review Committee on Professional Ethics, approved proposed guidelines for advertising past results under the 2013 revised advertising rules.  The BOG also voted to revoke the September 2013 staff advisory opinion/letter stating that the use of LinkedIn violates Florida Bar Rules and requested the Standing Committee on Advertising to prepare an advisory opinion on the use of the LinkedIn social and professional networking site by Florida lawyers.

Some of the most significant sections of the guidelines are below: 

“When an advertisement includes a dollar amount and language or an illustration that indicates that a client has received the specific amount (“My lawyer got me $X” with a photograph of a person receiving money), the dollar amount must be the net amount received by the client. The net amount is the amount after deductions for attorneys’ fees and litigation-related expenses.”

“An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).”  Examples include failure to disclose that a civil verdict was overturned on appeal or claiming that an acquittal on one or more criminal charges was successfully obtained without disclosing that the client was convicted of other crimes in the same matter.

“Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results.”

“Statements regarding collective or aggregated results about the amount of recovery are impermissible under Rule 4-7.13(a) because they are inherently misleading as there is no way for the viewer to know how many cases, clients, and/or lawyers are involved or the amounts and facts of individual matters that would permit consumers to make informed decisions regarding them.”

Bottom line:  This is a significant development in the ongoing evolution of the Bar’s position on the 2013 revised advertising rules and lawyers’ use of social media.  All Florida lawyers should carefully review the past results guidelines (which are important but not mandatory or binding).  Although the revocation of the informal opinion does not necessarily change the Bar’s position that the terms “Specialist” and Skills and Expertise” cannot be used by lawyers other than those who are Board certified, the fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant.  Stay tuned…

…and 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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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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