State Bar Prohibits Advertising via Text
Professionals are continuously looking for new ways to reach new clients. Given the popularity of text messaging, many firms have considered incorporating SMS messaging into their marketing plans. However, sending direct advertising to individuals’ cell phones could violate ethics rules on advertising and implicate federal laws prohibiting certain unsolicited telephone communications.
These issues were recently presented to the Florida Bar’s Standing Committee on Advertising by a criminal defense firm seeking to use text message in its advertising. Specifically, the firm requested guidance on its plan to use a computer system to send text messages regarding the firm’s legal services to people who have been arrested.
Model Rule of Professional Conduct 7.3 states that attorneys shall not solicit professional employment for pecuniary gain by live telephone or real-time electronic contact. Similarly, the Florida Bar Advertising Rule 4-7.18 states that, with certain exceptions, a lawyer may not solicit professional employment from a prospective client by telephone or other communication directed to a specific recipient. In addition, the Telephone Consumer Protection Act (TCPA) restricts telephone solicitations and the use of automated telephone equipment to send SMS text message and faxes.
The Florida Bar Advertising Staff voted unanimously that the proposed text messages violated Rule 4-7.18 on the grounds that text messages fall within the plain language of the rule’s prohibition against telephone communication and added that the proposal would likely violate the TCPA.
The law firm subsequently appealed the decision to the Florida Bar Standing Committee on Advertising. The law firm argued in its appeal that texts are akin to emails, which are permitted under the Florida Bar rules, and that a telephone number for text messaging is functionally equivalent to an email address. Under its proposal, the firm would use a daily list provide by the county clerk to obtain email addresses and mobile phone numbers of individuals arrested the previous day. It would then enter this information into an automated computer system that would send text messages offering its legal services. The firm continued that it would only send a text if email was unavailable and that it would provide an “opt out” feature to allow the recipient to decline future correspondence. Despite these proposed safeguards, the standing committee voted 6-1 against the proposal.
Professionals must proceed cautiously when soliciting new clients to ensure that their marketing practices are compliant with all applicable laws and rules. Firms that use SMS text advertising to promote their business run the risk of violating state advertising guidelines and could expose themselves to costly litigation for violation of federal laws restricting unsolicited telephone communications.