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Is texting akin to mail solicitation?

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Is texting akin to mail solicitation?

Is sending a text to a potential client like a mail solicitation or is it more like a direct phone call, something prohibited by Bar rule?

The Bar’s Standing Committee on Advertising pondered that question from a law firm that is seeking to use a computer system to send text messages touting the firm’s legal services to people who have been arrested.

At issue are Bar advertising Rules 4-7.18(a) and (b), which prohibit direct solicitation, including by telephone, of potential clients, but allows written solicitation in some instances and with various restrictions. A majority of Bar advertising staff felt the proposal violated that rule, and also noted a recent committee decision rejecting a request to send text messages to prospective clients.

The law firm appealed to the committee.

Jacob Stuart, representing the firm, argued that texts were more akin to emails and that a phone number in cases like this serves the function of an email address.

“It is our position that the ability to text someone is no different than email,” he said. “Just as if I text myself, it goes to my iPhone, it goes to my mobile device, it goes to my desktop.

“A phone [call] is not used at all, the phone number is essentially an email address.”

Stuart said the message would meet all other Bar rules, including being reviewed by the Bar, being labeled as an advertisement, and including a disclaimer that the recipient should ignore the message if he or she already has an attorney. The messages would also be sent from a desktop computer, not another phone.

In response to a question, he said that recipients without unlimited use plans would not be charged for the message, which instead would be billed to the firm.

Stuart also argued that most people now use phones to send messages rather than place traditional phone calls, making them more akin to email than phone calls.

Elizabeth Tarbert, the Bar’s ethics and advertising counsel, told the committee that “a majority of staff thinks this falls under the plain language of the rule, which is it is being sent to someone’s mobile phone and the rule prohibits solicitation via telephone.” She noted that the rule predates the advent of text messaging.

“The intent of the rule is to protect the public. Where’s the line?” said committee member Mike Faehner. “I think texting is the equivalent of a phone call, and I would vote to sustain the staff.”

Committee member Connie Bookman, a public member, said while she wouldn’t want to receive a business-related text on her phone, technology is changing.

“I don’t feel comfortable making a decision today,” she said. “We’re opening up a whole new world here.”

The committee initially voted 3-0 with two abstentions to uphold the staff recommendation. The committee then voted to reconsider and table the issue so Stuart could provide more information, including examples of the messages, for the committee’s May meeting. Some committee members also questioned whether the Federal Communications Commission would allow such solicitation via text messages, but added that was outside their purview.

Stuart said the firm has worked out a message system that complies with FCC rules.

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