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August 15, 2015
Bar board finds texting is not prohibited solicitation

Reversing a decision of the Standing Committee on Advertising, the Bar Board of Governors has said a law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and email communications.

The board at its July 24 meeting accepted the recommendation of the Board Review Committee on Professional Ethics, which reviews advertising appeals to the board.

Carl Schwait Board member and BRCPE Chair Carl Schwait reported that the advertising panel members, with one exception, equated texts with phone solicitations, which are prohibited by Bar rules. BRCPE members by an 8-0 vote, he said, reached the opposite conclusion.

“We found that in fact that text messaging is not prohibited in person solicitation and that they are instead a form of written communications such as that are the same as any other written communications and must comply with [Bar] Rule 4-7.8(b),” Schwait said. “We permit emailing we permit [paper] mailing and other types of advertising, and our committee found after listening to the applicant . . . that they have a new method going forward that is permissible.”

The texts, he said, will comply with all Bar rules, including that the first line of the text will proclaim the communication is advertising, and if targeted it will contain the disclaimer that if the recipient already has an attorney he or she should ignore the text, and will disclose how the law firm got the recipient’s name.

The firm will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if that is something the recipient would pay for under the recipient’s mobile phone plan.

Board member Bill Davis said he was concerned texts would be more intrusive than emails, because recipients can easily ignore or delete emails and only see them when they choose to turn on their computers, while texts pop up anytime their phone is on.

In response to a question, Schwait said recipients can opt out of receiving texts from the firm.

The board, by a voice vote, approved the BRCPE recommendation, with some dissents.

[Revised: 06-22-2016]