Legal ethics rules governing attorney advertising have evolved significantly with the trends of the digital age. Lawyers’ websites, blogs, and social media accounts are just a few of the advertising media that state bar associations have addressed in recent years in the context of technology-based legal marketing. Attorneys in Florida can now add text messaging to that list, as reported by the Florida Bar Journal. While telephone and in-person solicitation of clients continues to be prohibited under Florida Rules of Professional Conduct (“Rules”) Rule 4-7.18, the Florida Bar Board of Governors found text messaging to be more akin to email and other forms of written communication, which are permitted means of contacting prospective clients under the Rules.
It may seem that a large untapped market of prospective clients has now become reachable to Florida attorneys seeking to represent clients who have received traffic tickets, been charged with a crime, or injured in a car accident. Indeed, text messages have far surpassed phone calls as a preferred means of communication on mobile devices for many demographic groups, especially younger users. However, the Board of Governors’ decision included requirements that may make the process of soliciting prospective clients via text somewhat cumbersome, such that the effectiveness of this form of advertising, despite the widespread use of text messaging, remains to be seen.
Under Florida’s new standard, attorneys contacting prospective clients by text must follow the same rules that apply to other written communications in this context, which are set forth under Rule 4-7.18(b). Specifically, the first line of any text sent to a prospective client must state that it is an advertisement. Other required language must describe the advertising attorney’s qualifications, disclose how the lawyer obtained the recipient’s cell phone number, and advise the recipient to discard the message if they have already retained counsel. The advertising attorneys will get prospective clients’ phone numbers from, for example, public records identifying people who have recently been arrested or issued a traffic ticket. Lawyers are required to wait 30 days before soliciting a person who has suffered in injury due to an accident, and law firms are responsible for any data plan charges that prospective clients incur due to receiving their advertisements. The Bar has also indicated that attorneys employing this advertising method must be sure to follow complex state and federal laws and regulations regarding unsolicited text messages.
Notably, in making its decision the Board reversed an earlier ruling by the Florida Bar Standing Committee on Advertising, which had found text messages to be the equivalent of prohibited phone communications. The attorney petitioning the Florida Bar for this rule change argued that cell phone numbers effectively function in the same way that email addresses do in this context (i.e. when written messages are delivered to a cell phone), and that the contents of the text message would otherwise comply with regulations governing written solicitations such as emails. This comparison, along with the advent of text messaging as such an increasingly prevalent means of communication, helped persuade the Board of Governors to conclude that legal advertising by text should be permitted.
At the end of the day, time will tell if advertising by text message is an effective means of attracting new legal clients, or whether recipients of those communications will consider them a nuisance, or simply ignore them. Ohio is the only other state that appears to have addressed the question of attorney advertising by text message at the time of writing, and has approved similar guidelines to those set forth in Florida. Be sure to check the ethics rules for any new developments in your jurisdiction before undertaking a marketing campaign involving text messages to prospective clients, particularly if you practice in one of the many states that has not provided clear guidance on this issue.
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