I’ve long discussed the ethics issues involved in a lawyer using text messaging as a communications tool with clients and prospective clients. There are plenty of lawyer ads and billboards that invite you to text. The area I had never put a lot of thought into was the proactive text–from the lawyer to the potential client offering up legal services. Even someone like me that is engaged in developing marketing strategies for law firms every day had not really embraced the initial touch of a text as a method of advertising communication.
Just as lawyers cull various public records to send direct mail to prospective clients–for criminal defense, tax issues, bankruptcy, personal injury–many are now taking a no-mail-barred approach and going right to the cellphone. It is quicker and cheaper, and likely as effective as the “cold call” letter. In many marketing efforts, we are quickly finding out that the mobile device is the most effective means of communication–through mobile sites, apps, tablets, etc. Why wait for snail mail when you can reach a person right now, wherever they may be? The cell phone is often available right on those accident reports and other potential sources of new business.
The Ohio opinion (2013-2, April 5, 2013) starts by addressing that is fits into both the “electronic” and “written” communication categories. It also discusses the difference between “real time” (which is a no-no) and something more akin to an e-mail (OK). However, while coming to the conclusion that texting as an advertising tool is permissible, the related compliance issues make it a non-starter for most that might be interested in trying it out. Among the items that merit consideration and concern are:
You must let the recipient know how you became aware of their situation.
The term “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” must appear in the body of the text.
You must follow the 30-day solicitation rule of the state. Ohio’s is much looser than many, but requires specific disclaimer language–which can’t simply be delivered via a website hyperlink.
You must ensure that the recipient is not charged for the text.
You must follow applicable telemarketing laws (including the do not call registry).
I applaud Ohio for addressing the texting issue in rather quick fashion. It seems like many states have been slow to hit some heavily used areas of technology marketing, including blogs, social media and referral services. For some reason, many have been quick to address the “daily deal” sites (such as Groupons). However, as is often the case in the area of law marketing ethics, these opinions become the framework for many other states. If you are considering the use of texting or are already doing so, this opinion provides a solid framing of the issues and concerns.