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
Joe: A 2013 Ohio ethics opinion came to a similar conclusion. Opinion 2013-2 determined that Ohio lawyers can use text messages to solicit professional employment from prospective clients, provided they comply with all Ohio ethics rules on lawyer advertising, and all applicable federal and state telemarketing laws. But as a practical matter, the Ohio ethics opinion makes targeted marketing via text difficult. A rule particular to Ohio mandates that a lengthy “Understanding Your Rights” statement be included in any solicitation sent to a prospective client within 30 days of an accident or disaster. The ethics opinion interprets the rule to require the body of the statement to be included in the text message, and not just a link to it or image of it. So effectively, the Ohio opinion is quite unfriendly to marketing via text.