When lawyers try to utilize technology in novel ways to either practice law or advertise services, the unfortunate first response is often to want to create new rules to define (or limit) it. But the simplest approach is usually just to look at the rules as written to see if they apply. For the most part, the application of the rules to technology will be a matter of old wine in new bottles.
The Ohio Board of Commissioners on Grievances and Discipline recently confronted this when issuing an ethics opinion discussing whether Ohio lawyers may use text messages to solicit professional employment from prospective clients. In allowing the text messaging, the Board noticed:
Text messaging may be a novel approach to client solicitation, but our ethical review is actually a straightforward application of the Rules of Professional Conduct.
Bravo. Ohio Ethics Op 2013-2, issued April 5, 2013, concludes that text message advertising:
- Is generally permissible under Ohio RPC 7.2(a)
- Cannot be false, misleading, or contain nonverifiable information under Ohio RPC 7.1
- Is not a “real-time” electronic contact under Ohio RPC 7.3(a)
- Is not conduct that involves coercion, duress or harassment under Ohio RPC 7.3(b) (that is, stop when asked to stop and don’t bombard with texts because they may cost the recipient money per text)
- Must notify the recipient of the means by which the lawyer learned of the potential need for legal services, and include “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” at both the beginning and ending of the message per Ohio RPC 7.3(c)
- Must verify that the recipient has been served with notice of the action before sending a text message solicitation per Ohio RPC 7.3(d) if the recipient is a defendant in a civil action
- Must include the required “Understanding Your Rights” disclosure if soliciting within 30 days of an accident or a disaster under RPC 7.3(e). Lawyers may not just include a link to the rights on their website and may not just include a picture of the rights – the full language must be in the texts even if it causes multiple texts to be sent.