The Supreme Court of Ohio recently ruled that attorneys may use text messages to advertise, but emphasized that the Ohio Rules of Professional Conduct must be followed regardless of space limitation or advertising vehicle. Texting
Attorneys are using texting to contact prospective clients after obtaining their numbers from police and accident reports. Although the messages often contain a link to the lawyer’s website, the Court said that the link is not enough and the actual text must contain any language that is required by the advertising and solicitation rules, such as placing the words Advertisement Only or Advertising Material at the beginning and end of the text and other lengthier disclaimers if the lawyer knows that the prospective client is in need of legal assistance or has been recently injured.
The opinion distinguishes texting from impermissible, potentially coercive real time communication and analogizes texting to sending an email solicitation. The opinion also notes that a text message should not create any cost to the recipient, should not be sent to a minor and must be in compliance not only with attorney advertising rules, but also with applicable state and federal communication regulations.
Some of the disclaimer language required by the attorney advertising rules in Ohio is quite long for a text message, such as the language, which must be sent if someone has recently be injured in an accident. It is important to note that, unlike other states that require a thirty day waiting period before contacting an accident victim, Ohio permits contact with a victim within thirty days; however, the following “Understanding Your Rights” statement must be included regardless of whether the contact is via text message: THE SUPREME COURT OF OHIO, WHICH GOVERNS THE CONDUCT OF LAWYERS IN THE STATE OF OHIO, NEITHER PROMOTES NOR PROHIBITS THE DIRECT SOLICITATION OF PERSONAL INJURY VICTIMS. THE COURT DOES REQUIRE THAT, IF SUCH A SOLICITATION IS MADE, IT MUST INCLUDE THE ABOVE DISCLOSURE.
Whether sending all of the additional disclosure language in a text message defeats the goal of a streamlined texting advertising campaign remains to be seen, but clearly technology has provided yet another vehicle to drive in the controversial world of attorney advertising.
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