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June 1, 2015
Ad panel equates texts with prohibited direct solicitations

By Gary Blankenship
Senior Editor

The Standing Committee on Advertising has denied a law firm permission to send texts to potential clients.

The committee reviewed proposals from the firm, which contended that texts are more akin to email than phone contacts, but the panel voted 6-1 against the idea.

At issue was Bar Rule 4-7.18(a), which prohibits direct communication or solicitation of potential clients in person or via telephone, telegraph, or fax. Direct mail, including emails, are permitted if they follow the requirements in Rule 4-7.18(b), including that the message must be clearly labeled as an advertisement, the first line must advise the recipient to ignore the communication if he or she already has an attorney, and that it must give the sending attorney’s qualifications and geographical address, among other things.

Jacob Stuart, representing the petitioning firm, argued in this case the phone number is more like an email address in that it is used to deliver a text message that would otherwise comply with Bar rules for direct mail. Smartphone users, he added, use their mobile devices more to check email, send texts, and post to social media than they do to make actual phone calls.

“The phone number has become an address,” Stuart said. “It is simply the address for a variety of accounts, one of which is the phone.”

He said the firm planned to obtain phone numbers of those arrested or issued traffic citations from clerks, run them through a database that identifies those that are mobile devices, and then use a computer to send them text messages. Stuart said the practice would help bring legal services to low- and moderate-income people who rely primarily on their smartphones for information.

He also noted that traditional landline phones can’t even receive texts.

Committee member Carolyn Bell said she was concerned because many texts would go straight to phone owners who hadn’t configured their phones to divert texts to a holding folder.

“When I get an email, I have an ability, first of all, to open it or not, and second of all, I don’t even access my email unless I want to access my email. But with text messages, I get a notification at the moment the message is sent,” she said.

Stuart said even though some owners hadn’t done so, they could set their phones to treat texts like emails.

Bar Ethics and Advertising Counsel Elizabeth Tarbert said a majority of Bar staff recommended against the text system. She noted that although the rule was written more than 20 years ago, before texts were possible and portable phones were in widespread use, the rule did not prohibit telephone “calls.” Rather it prohibits the use of telephones, as well as telegraphs, faxes, and in-person appeals to make direct solicitations to potential clients. Those restrictions, she said, address “the urgency and intrusiveness” of the communication.

Tarbert added that the committee could interpret the rules as allowing the texts, as long as they met the requirements for direct mail or email solicitations.

But in the end, the committee voted to affirm Bar staff’s opinion, with Bell saying she thinks texts are more like the telegraphs and faxes specifically prohibited in the rule. Public committee member Connie Bookman, who cast the sole no vote, said she agreed with Stuart that smartphones are really like mobile devices and small computers that also have the ability to make phone calls.

“You are texting a mobile device, not a telephone,” Bookman said.

Public committee Vice Chair Al Alsobrook, who voted with the majority, mused, “Unfortunately, the technology is changing faster than the rules can be changed. That is something that bothers me….The technology is going to continue to change and the rules are going to continue to be slow to change.”

The law firm has requested that the Bar Board of Governors review the committee’s decision.

[Revised: 12-06-2018]