This article serves as a supplement to a previous publication: Just Shoot Me a Text: The Florida Bar’s Regulations on Attorney Advertisements and Modern Communications.[i] Since the publication of the foregoing comment, the Florida Bar has shared opinions relating to the use of text messages as an attorney solicitation tool.
An Orlando law firm, who sent the second and ultimately successful inquiry to the Florida Bar requesting to send automated text messages to potential clients for the purpose of soliciting legal services, presented to the Florida Bar the process in which it was planning on retrieving information from court records to send text messages to criminal defendants who may be in need of legal services.[ii] The text message that this law firm represented to the Florida Bar to send to such potential clients read: “Criminal charges can change your life forever . . . You might feel scared and alone. The government accusing you has power; it has money; it has police and it has many lawyers who will be working to convict and punish you. You should have a lawyer, too.”[iii]
On July 24, 2015 at the Florida Board Review Committee on Professional Ethics, which has the duty to review advertising appeals made to the Florida Board of Governors, determined that texting is not considered prohibited solicitation under the Florida Rules of Ethics.[iv] The advertising panel of the Florida Board of Governors decided that text messages were the equivalent of phone solicitations and was thus prohibited by the Florida Bar Rules. The Bar Board of Governors, however, reached the opposite conclusion.
In reaching its conclusion, The Bar Board of Governors reasoned that text messages are not a form of in person solicitation, but are a form of written communication. Just like other written communications, solicitation in the form of text messages must comply with Rule 4-7.8(b) of the Florida Rules of Professional Conduct.[v] In order to comply with Rule 4-7.8(b), the first line of the text message will have to assert that the communication is advertising and must contain the disclaimer that if the recipient of the text message has already retained his or her own attorney, they are to ignore the text message.[vi] The law firm must also disclose how the law firm received the recipient’s name. An additional requirement that the text messages must meet is the law firm must maintain records of the content of the sent text messages. Law firms who choose to utilize text messages to solicit clients must contact the cellular provider of the recipient of the text message and pay for any costs of sending the text message if the receipt of the message is not included under the recipient’s cellular plan. Law firms who send text messages to potential clients in the hopes of retaining legal services must also follow all other state and federal laws, such as the Telephone Consumer Protection Act.[vii] The Telephone Consumer Protection Act prohibits automated dialing systems in order to send text messages or “robocalls” unless prior written consent is obtained from the recipient. This means that each text message sent to a potential client must be sent individually from a person or representative of the law firm.[viii] The American Bar Association reports that Florida is only the second state to allow text messages as written attorney solicitation.[ix] Ohio was the first state to allow such attorney solicitation.
The President of the Florida Bar, Ramon Abadin, describes the permitted use of text messages as attorney solicitation as “an adaptation to reality.”[x] President Abadin further explains the Florida Bar’s efforts to keep up with technological advances of today’s world by stating that most people “communicate by mobile data devices that happen to be phones, too.”[xi] President Abadin and the Florida Bar views the permitted use of solicitation via text messages as a duty of lawyers to better serve their clients. The Orlando law firm, which brought the question to the Florida Bar as to whether or not it was permitted to use text messages to solicit legal services to clients, presented to the Florida Bar data that showed “99 percent of Florida adults have at least one mobile device, including phones, laptops, and tablets.”[xii] Out of these numbers, 90 percent of those adults in Florida reported using such devices for text messaging. Text messages prove to be a preferable way of communication as, according to further data provided by the Orlando law firm, “Americans between 18 and 29 years old send and receive 88 text messages a day, compared to 17 phone calls. . . .”[xiii] From this data and further conclusions reached by the Florida Bar, the Florida Bar permitted the use of text messages as attorney solicitation as a way for lawyers in Florida to keep up with the evolution of society and adapt to today’s social and technological world.
Even though the Florida Bar recognizes and permits text messages as permitted attorney solicitation, there are characteristics of text message that lawyers may need to consider in using text messages to solicit clients.[xiv] Text messages can very easily be forwarded or saved. Text messages can also very easily be altered, because smartphones allow the sender or recipient to delete individual text messages in a conversation or even take a screenshot of the conversation. Just like other electronic forms sent to clients and opposing counsel, metadata and the duty to scrub metadata from an electronic document may apply to text messages as well. Cellular service providers have the ability to not only have access to sent and received text messages, but to retain or destroy text messages either sent or received. Lawyers should be aware of such policies and abilities of cellular providers to uphold their ethical duty as a lawyer of preventing disclosure of confidential client information. Text messages also may have the tendency to invite conversation, transforming a text message meant to be a solicitation of legal services into communications between the parties with the possibility of a client retaining the lawyer to carry out the advertised legal services. When such conversations transform into attorney solicitation, lawyers need to be aware of the technological considerations just mentioned and know how these communications can affect other ethical duties the lawyer must uphold. As attorney solicitation through text messages becomes more popular and widely used with Florida lawyers, the Florida Bar may be faced with applying the permitted use of text messages as attorney solicitation to other Florida Bar rules.
[i] Jazlyn Juda, Comment, Just Shoot Me A Text: The Florida Bar’s Regulations on Attorney Advertisements and Modern Communications, 40 Nova L. Rev. (Fall 2015).
[ii] Elaine Silvestrini, Florida Attorneys Cleared to Send Text-Message Solicitations, Orlando Sentinel (September 8, 2015 7:43 AM), http://www.orlandosentinel.com/news/breaking-news/os-texts-florida-lawyer-attorney-20150908-story.html.
[iv] See Bar Board Finds Texting is Not Prohibited Solicitation, The Fla. B. News (August 15, 2015), http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/e060eb44c677d6e085257e9d00424f90!OpenDocument.
[v] Id.; See also Fla. Rules of Prof’l Conduct r. 4-7.18(b) (2014).
[vi] Bar Board Finds Texting is Not Prohibited Solicitation, supra note iii.
[vii] Silvestrini, supra note i; see also 47 USC § 227 (1991).
[viii] Kyle Munzenrieder, Florida Attorneys Now Allowed to Solicit You via Tet Message, Miami New Times (September 8, 2015 12:57 PM), http://www.miaminewtimes.com/news/florida-attorneys-now-allowed-to-solicit-you-via-text-message-7882397.
[ix] Martha Neil, Law Firms in Florida can Send Text-Message Ads to Prospective Clients, State Bar Says, ABA Journal (September 2, 2015 12:30 PM), http://www.abajournal.com/news/article/law_firms_in_florida_can_send_text_message_ads_to_prospective_clients.
[x] Silvestrini, supra note i.
[xiv] See The Florida Bar Best Practices for Effective Communication, The Florida Bar, August 7, 2015 at 4—5, available at https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/867146754B88854A85257E600075565F/$FILE/E-communication.pdf?OpenElement.