Lawyers and Texting: Part V

Part V: Ethics of Advertising via Text Messaging

Ethics Corner Article

Dear Ethics Committee,

I have learned that there are services that can allow me to advertise and solicit new clients through text messages. Is this permissible under the NH Rules of Professional Conduct?

Answer:

Rules 7.1, 7.2, and 7.3 are the main rules that govern advertising legal services. Rule 7.1 prohibits the use of false or misleading communications about the lawyer or the lawyer’s services. That prohibition applies in all advertising contexts and across all possible advertising mediums, including text messaging.

Rule 7.2 allows a lawyer to advertise the lawyer’s services through written, recorded, or electronic communication so long as the advertisement contains the name and office address of the lawyer or law firm that is responsible for its content.

The more pressing consideration is whether a text message is an acceptable way to directly solicit prospective clients under Rule 7.3. Rule 7.3(a) states that “A lawyer shall not initiate, by in-person, live voice, recorded or other real-time means, contact with a prospective client for the purpose of obtaining professional employment…” unless the person contacted is a lawyer, has a prior personal or professional relationship, is the representative of a business or other organization, or is a person who regularly requires legal services in a commercial context. However, Rule 7.3(c) allows for the direct solicitation of clients through “written, recorded, or electronic communication…” so long as the lawyer includes the word “advertising” on the envelope containing a written communication, or at the beginning and ending of any recorded or electronic communication.

The crux of the issue is whether a text message is a “real-time” communication, like a phone call, or is a “written, recorded or electronic” communication such as an email or a written letter. NH has not directly addressed this issue. However, the Ohio, Florida and North Carolina bar associations have issued opinions on this issue in recent years. In 2013, the Ohio Board of Commissioner on Grievances and Discipline issued an informal opinion stating that it was permissible for lawyers to advertise via text if they followed all of the other rules for issuing written or email advertisements, the lawyer covered the cost of the delivery and receipt of the text message, and so long as the text messages did not create a “real-time” interaction similar to an internet chat room. In 2015, the Florida Bar Standing Committee on Advertising issued an opinion stating that text messages were prohibited real-time communications under their version of 7.3. However, the Florida Bar Board of Governors reversed the Standing Committee’s determination and found that lawyers can send text messages to prospective clients under the rules for written and email solicitations. More recently in 2017, the North Carolina Bar Ethics Committee issued a formal ethics opinion that text messages distributed through a subscription-based text advertising service do not run afoul of Rule 7.3 because the advertisements are being distributed to the general public rather than a specific individual and because the individuals who are receiving the advertisements have voluntarily signed up for the text messaging service and knew that they would receive advertisements.

It appears that the recent trend has been to treat text messages as similar to emails and other written communications for the purposes of advertising legal services. While the NH Supreme Court and the American Bar Association have not addressed this issue, the Rules of Professional Conduct do not appear to prohibit using text messages as an advertising avenue provided that the lawyer complies with all other obligations associated with issuing written or electronic advertisements under Rules 7.1, 7.2, and 7.3. The lawyer’s name, firm, and address should be included in any text message advertisement. Additionally, the lawyer should include a disclosure that the text message is “advertising” in any message issued as a direct solicitation of a prospective client. As a practical matter, attorneys should exercise caution when utilizing text messages for advertisement or solicitation purposes because some recipients may incur costs for receiving the text message and other prospective clients may find that receiving unwanted text messages is annoying or harassing. 

By the NHBA Ethics Committee

This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its May 6, 2019 Meeting. 

The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.