Recent Decision: It’s Okay to Reach Your Next Client Via Text?

Marketing is a must for all professionals.  The quality of a professional’s skills may be wasted unless marketed to, and utilized by, would-be clients.  Thus, professionals strive for efficiency in targeting an audience but those efforts are tempered by ethical considerations in advertising.  However, solicitation just got considerably easier for attorneys in Ohio who may now reach potential clients via text.

It was not so long ago that most forms of attorney advertising were prohibited by every bar in the country.  Pursuant to the 1908 Canons of Professional Ethics, “solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relation, is unprofessional” and all forms of self-promotion “are reprehensible…to our profession.”  It was not until 1978 when the US Supreme Court in Bates v. State Bar of Arizona held that the prior standard conflicts with the First Amendment and that a state may not prohibit attorneys from advertising for legal services.  However, a state may impose restrictions upon certain commercial expression that is “false, deceptive, or misleading.”  Accordingly, there is a line in the sand regarding appropriate attorney solicitation.

Today, each state maintains ethics rules governing attorney advertising, solicitation and marketing.  Some states prohibit attorneys from publishing statements about testimonials, past successes, and quality of services.  With technological evolutions, come new issues facing state disciplinary boards regarding attorney use of blogs, e-mail communication, “chat rooms,” and other forms of electronic solicitation.   Earlier this month, the Ohio Supreme Court’s Ethical Board issued a novel decision that is gaining national attention by holding that attorneys were free to solicit via text.

In its decision, the Ohio board wrote that the practice of advertising by text was not barred under traditional ethics rules although it’s a relatively new technological development.  The board concluded that so long as attorneys ensure that the text messages do not create a real-time interaction similar to an internet chat room, follow telemarketing laws, and ethics rules concerning electronic solicitation, text message solicitation of clients is acceptable.

The board did impose certain limitations on this new form of solicitation.  Notably, false or non-verifiable statements were not permissible and texts must include the name and address of the lawyer responsible for the content.  Additionally, lawyers must explain how they became aware of an individual’s legal need, refrain from predicating an outcome, and warn that the material is advertising.  Further, an “Understanding Your Rights” statement must accompany all texts. Undoubtedly other jurisdictions will keep an eye on the outcome of this decision as other states consider the ethical ramifications of text message solicitation.

Arguably, text message solicitation is of such interest to professionals because it remains the one form of communication that many people are tethered to 24/7.  About 6 billion texts are sent daily; which is considerably more than cellphone calls.  “Which helps explain why, at a time when in-boxes fill with hundreds of never-opened e-mail messages from direct marketers, 97 percent of SMS [text] marketing messages are opened (83 percent within one hour).” Savvy professionals are aware of these statistics and hope to utilize texts to develop their client base.  Before doing so, however, all professionals must ensure that marketing efforts are conducted within the bounds of ethics and professionalism.

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