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Is Nothing Sacred Anymore?: Solicitation via text message

On Behalf of | Jul 22, 2013 | Firm News

The practice of law is notoriously slow in adapting to new technology. Forget e-filing and e-mail, in some corners of the country it is still common to see attorneys using only legal pads and ballpoint pens. Some of the worst offenders even still use… Gasp… Blackberries. While it has been a struggle to convince some attorneys to join the 21st century, change is coming quickly. For example, the Texas legislature introduced a bill allowing service of process via Facebook. However, the legal practice’s backbone–the ABA model rules of professional responsibility–may not be able to accommodate the most recent incursion from the modern era: solicitation via text message.

Yet, the concept of solicitation via text message has met some support in the Ohio Supreme Court’s Ethics Board. (Read the Opinion here).  While the Board, who is comprised of Ohio Supreme Court Justices, acknowledged that the technology is a new development, it decided that as long as attorneys do not engage in an interactive conversation with the client, akin to an Internet chat room, the text message solicitation of clients is acceptable.

The Ohio Board did say that the old rules still apply. Most importantly, false or misleading statements are not permissible in texts just as if they were on a printed publication. The text must also include the name and address of the lawyer responsible for the content. Additionally, the Ohio Board required attorneys to explain how they became aware of the individual’s legal need and not attempt to predict an outcome or promise a result.

For attorneys who procure their client base primarily through advertising, the Ohio Board’s ruling represents quite a coup. Over 6 billion texts are sent daily, and the average person keeps their cell phone with them more than any other household item. Indeed, text messaging experts acknowledge that over 97% of text messages are opened by the recipient, making them a nearly guaranteed vessel to get your message to a potential client.

There is intense debate over how widespread text message solicitation will, or should, become. Even in the wake of the Ohio Board’s decision, it is unknown whether other courts will follow suit. Each state maintains its own independent rules of professional responsibility governing attorneys, which means each state court will have to arrive at its own independent conclusion.

Would you use text messaging to contact potential clients? Leave your answer in the comments below.


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