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Nation’s first ruling on text solicitations draws mixed reviews

Nation’s first ruling on text solicitations draws mixed reviews

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Last month, Ohio became the first state in the nation to give the green light to lawyers sending text messages to solicit prospective clients.

But at least one expert says it makes no sense to treat text message advertisements differently from a lawyer making a direct phone call solicitation, which is universally deemed a violation of professional rules of conduct.

“If you are going to say phone calls are [impermissible] solicitations, I don’t think there’s enough reason to say that text messages are not,” said Oakland, Calif., attorney Randy Wilson, who writes a blog on the law and social media.

The commotion is over an advisory opinion issued in April by the Ohio Supreme Court Board of Commissioners on Grievances & Discipline. The board concluded that the state’s rules of conduct permit the use of text messages to solicit clients so long as the messages comply with: (1) the general standards governing communications about a lawyer’s services; and (2) the usual limits on direct contact with prospective clients.

The board’s senior counsel, Michelle A. Hall, helped draft the opinion. Hall explained that the board was writing on a blank slate. From her research, no other state has addressed this precise issue.

The board’s opinion addressed the hypothetical of a lawyer who obtains the cellphone number of a prospective client from an accident or police report. The lawyer sends a text message directly to the cellphone number indicated in the report. The message contains a direct solicitation for professional employment and very general information about the lawyer and his legal services. The message also may include a link to the lawyer’s website that contains additional advertising material.

The board concluded that such messages are generally permitted under Ohio Rule of Professional Conduct 7.2(a), which includes electronic communication among the broad range of marketing options available to attorneys.

Hall explained that the board likened text messages to e-mail advertising, which Ohio lawyers are allowed to use in marketing their services, so long as they conform to other rules applicable to attorney advertising.

But Wilson couldn’t understand why the board would say it’s okay for a lawyer to text a message to a potential client when the lawyer couldn’t use the very same cellphone he used to send the text to call the client to pitch his services.

“Texting is awfully similar to a phone call,” said Wilson, co-founder of the legal marketing company, DSD Law Site Solutions. “The immediacy of the back and forth of a text message is not like an e-mail.”

Hall begged to differ.

“I don’t see that there’s any immediacy associated with a text message in a way that is different from an e-mail, especially when people get e-mails on their smartphones now,” Hall said.

One attorney lining up on the side of the board’s opinion is Joseph A. Corsmeier of Clearwater, Fla. Corsmeier, who defends lawyers in disciplinary matters and is the author of an ethics blog, predicted that other states will look to the Ohio advisory opinion for guidance on the treatment of text messaging.

Corsmeier said he understood why the Ohio board drew the parallels it did between texting and e-mailing and why the same protections for consumers of legal services should apply.

“People are becoming more sophisticated about texting,” Corsmeier said. “They understand that they don’t have to respond and can just delete it.”

Addressing these consumer concerns, the board in its opinion made clear that a lawyer’s texted advertisements are subject to the rule which prohibits the use of false, misleading or nonverifiable statements when communicating about a lawyer’s services. Further, the board said that the text message must comply with the rules placing restrictions on direct contact with prospective clients.

In this regard, the board said that a lawyer’s text message “cannot create a ‘real-time’ interaction similar to an internet chat room.”

But Wilson submitted that the rapid pace of technological advancement is making unworkable the type of fine line-drawing the Ohio board attempted in its advisory opinion. Instead, Wilson proposed the same treatment for cell phones, e-mail, texting and instant messaging.

“I would draw the line at in-person solicitation and say that that is barred,” Wilson said. “Anything else would be allowed, governed by whatever variety of rules deemed appropriate.”

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