Just Shoot Me a Text: The Florida Bar’s Regulations on Attorney Advertisements and Modern Communications – Supplement
Jazlyn
Juda
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.
[iii] Id.
[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.
[xi] Id.
[xii] Id.
[xiii] Id.
[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.
