Can a North Carolina lawyer buy text-message advertising sent to subscribers of an SMS service, and can the lawyer call a subscriber who opts in?

Plain-English summary

A lawyer asked whether he could advertise through "ABC Texting," a free SMS service that people subscribe to by giving a cell number and zip code so they can receive advertisements, including from lawyers, in their area. The opinion answers yes, provided the text advertising complies with Rules 7.1 (truthful and not misleading), 7.2 (permitting paid advertising and requiring the name and office address of a responsible lawyer or firm), and 7.3 (limits on direct solicitation), plus applicable federal and state law.

The committee treats the text advertisement ("Injured at work? We can help," with a link to the lawyer's website) as an electronic communication about the lawyer's services, akin to a billboard or banner directed to the general public. Under comment [1] to Rule 7.3, a communication directed to the general public is not a solicitation, so the extra precautions for targeted communications in Rule 7.3(c) do not apply. Before sending, the ad must be revised to satisfy Rule 7.2(c): it must include the lawyer's or firm's name and office address, or a website address where the office address can be found.

On the second inquiry, the opinion addresses an opt-in exchange in which the subscriber replies "YES" to a question about being injured and "YES" to being contacted, after which the service gives the lawyer the subscriber's number to call. The committee concludes this is not the prohibited live telephone or real-time electronic contact Rule 7.3(a) bars. It distinguishes 2006 FEO 17, where an unsolicited autodialed message led to an immediate push-button connection to a lawyer, and analogizes to 2011 FEO 8, where a website visitor initiated a live-chat session. Here the subscriber voluntarily registered expecting advertisements and separately consents to a call, so the potential for undue influence, intimidation, and over-reaching that Rule 7.3(a) guards against is absent. The opinion adds that the answer does not change if the second text includes the lawyer's phone number and an invitation to call (Inquiry #3).

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct matching the opinion's fact pattern is treated as follows. Buying advertising on a general, opt-in subscriber text service is permitted as advertising when the message is truthful and not misleading and carries the Rule 7.2(c) identifying information (a name and office address, or a website address where the office address can be found). The opinion characterizes such mass, subscriber-directed text ads as the equivalent of a billboard or banner, so the targeted-communication precautions of Rule 7.3(c) do not attach, on the stated assumption that the message is not aimed at someone known to need legal services in a particular matter.

The opinion holds that a follow-up phone call is permissible only because the subscriber both registered voluntarily and separately consented to the call; per the opinion the Rule 7.3(a) prohibition reaches only lawyer-initiated real-time contact, not contact a potential client invites.

Common questions

Q: Can a North Carolina lawyer pay for text-message advertising sent through an SMS subscription service?

A: Yes. Opinion #1 permits it if the advertising complies with Rules 7.1, 7.2, and 7.3 and applicable federal and state law. Rule 7.2(b) allows a lawyer to pay the reasonable cost of advertising.

Q: Is a mass text advertisement a prohibited solicitation?

A: No. The opinion treats a text ad sent to a service's general subscriber list as akin to a billboard or banner directed to the general public, which comment [1] to Rule 7.3 says is not a solicitation, so the Rule 7.3(c) precautions for targeted communications do not apply.

Q: Does a text ad have to include the lawyer's office address?

A: It must satisfy Rule 7.2(c) by including the lawyer's or firm's name and office address, or a website address where the office address can be found. The opinion required the proposed ad to be revised to add this information.

Q: May the lawyer call a subscriber who replies "YES" to being contacted?

A: Yes. Opinion #2 concludes this is not the prohibited live or real-time contact under Rule 7.3(a), because the subscriber registered voluntarily and consented to the call; per 2001 FEO 8 the prohibition applies only to lawyer-initiated contact, not contact a potential client invites.

Background and rules framework

The opinion interprets North Carolina's advertising and solicitation rules. Rule 7.1 (Model Rule 7.1) requires communications about a lawyer and the lawyer's services to be truthful and not misleading. Rule 7.2 (Model Rule 7.2) permits advertising through written, recorded, or electronic communication subject to Rules 7.1 and 7.3, permits paying the reasonable cost of advertising (7.2(b)), and requires the name and office address of a responsible lawyer or firm (7.2(c)). Rule 7.3 (Model Rule 7.3) limits direct contact with potential clients; Rule 7.3(a) prohibits in-person, live telephone, or real-time electronic solicitation when a significant motive is pecuniary gain, and Rule 7.3(c) imposes added precautions for targeted communications.

The committee relies on its own prior opinions to draw the line: 2006 FEO 17 (recorded telephone advertising cannot lead to an immediate push-button encounter with a lawyer), 2011 FEO 8 (a website live-chat the visitor initiates is permissible real-time contact), and 2001 FEO 8 (Rule 7.3(a) reaches only lawyer-initiated contact).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / NC Rule 7.1 (truthful, not misleading communications)
• Model Rule 7.2 / NC Rule 7.2(a), 7.2(b), 7.2(c) (advertising; paying reasonable costs; name and office address)
• Model Rule 7.3 / NC Rule 7.3(a), 7.3(c) and cmts. [1]-[2] (solicitation; targeted communications)

Other opinions cited:

• 2006 FEO 17: recorded telephone advertising may not lead to an immediate interpersonal encounter at the push of a button.
• 2011 FEO 8: a lawyer may use a website live-chat support service that the visitor initiates.
• 2001 FEO 8: Rule 7.3(a) applies only to lawyer-initiated real-time contact, not client-initiated contact.

See also

• ABA Formal Op. 501: Solicitation of Clients
• CA COPRAC Op. 2004-166: Chat-Room Solicitation of Disaster Victims
• Alabama Op. 2006-01: Direct Solicitation of Former and Present Clients

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2017-formal-ethics-opinion-1/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Background:

ABC Texting is a Short Message Service (SMS) that provides a free subscriber-based text messaging service. Subscribers go to the ABC Texting website and register by providing a cell phone number and zip code. No other information is provided. Once registered, subscribers receive text messages from ABC Texting for various products and services, including, but not limited to, messages from lawyers offering legal services in the subscriber’s specific zip code. Subscribers can unsubscribe at any time. ABC Texting earns revenue by selling text message advertising to businesses and professional service providers that wish to advertise to subscribers in a specified zip code.

Inquiry #1:

Lawyer represents clients in workers’ compensation matters and would like to purchase advertising with ABC Texting. Lawyer’s advertisements would be sent via text message to ABC Texting subscribers. The text message advertisement will state, “Injured at work? We can help.” The text message will also include a link to Lawyer’s website. The subscriber will have the option to click on the link or delete the text message. If the subscriber chooses to click on the link, he will be directed to Lawyer’s website. The website provides information about Lawyer’s firm, including areas of practice, location, contact information, and Lawyer’s profile.

May Lawyer advertise through this text message service?

Opinion #1:

Yes, provided the text message advertising complies with Rules 7.1, 7.2, and 7.3 and all applicable federal and state laws, rules, and regulations.

Rule 7.1 requires all communications about a lawyer and the lawyer's services to be truthful and not misleading. Rule 7.2(a) permits a lawyer to advertise services through written, recorded, or electronic communications subject to the requirements of Rule 7.1 and Rule 7.3. Rule 7.2(b) permits a lawyer to pay the reasonable costs of advertisement or communications permitted by the rule. Rule 7.2(c) requires that any communication about the lawyer or the lawyer’s services include the name and office address of at least one lawyer or law firm responsible for the advertisement. Rule 7.3 limits direct contact with potential clients for the purpose of soliciting business.

Advertising through the ABC Texting service is an electronic communication about Lawyer’s services. However, it is not a solicitation that requires the extra precautionary measures set out in Rule 7.3(c) governing targeted communications.1 Comment [1] to Rule 7.3 provides,

A solicitation is a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website, or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

Text message advertising as described herein is akin to billboard or banner advertisement directed to the general public. Therefore, Lawyer may advertise through ABC Texting. However, before Lawyer can allow ABC Texting to send his advertisement to subscribers, the advertisement must be revised to comply with Rule 7.2(c). The advertisement must include Lawyer’s name (or law firm name) and office address, or a website address wherein the lawyer’s office address can be found.

Inquiry #2:

If the answer to Inquiry # 1 is yes, may Lawyer use text message advertising if the subscriber has the option to reply to the text message as follows:

ABC Texting: Have you or someone you know been injured at work? If so, type YES.

Subscriber: YES

ABC Texting: Lawyer can help. May we contact you at this number? If so, type YES.

Subscriber: YES

ABC Texting: Thank you. A representative will contact you soon.

If the subscriber replies YES to both questions, ABC Texting provides the subscriber’s cell phone number to Lawyer. Lawyer will then contact subscriber directly.

Opinion #2:

Yes. The communication as described above is not a prohibited live telephone or real time electronic contact.

Rule 7.3(a) provides that, “[a] lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client when a significant motive of the lawyer's doing so is the lawyer's pecuniary gain.” Comment [2] explains the prohibition as follows:

There is a potential for abuse when a solicitation involves direct in-person, live telephone, or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

In the context of autodialed recorded telephone advertising, the Ethics Committee opined in 2006 FEO 17 that,

[A]lthough it appears that recorded telephone advertising messages are permitted by the Rules of Professional Conduct, Rule 7.3(a) and the comment to the rule do not contemplate that a recorded message will lead to an interpersonal encounter with a lawyer (or the lawyer’s agent) at the push of a button on the telephone key pad. To avoid the risks of undue influence, intimidation, and over-reaching, a potential client must be given an opportunity to contemplate the information about legal services received in a recorded telephone solicitation. This cannot occur if a brief, unexpected, and unsolicited telephone call leads to an in-person encounter with a lawyer, even if the recipient of the phone call must choose to push a number to be connected with the lawyer.

However, in 2006 FEO 17, the legal advertisement at issue was an unsolicited communication about a lawyer’s services and required an immediate response from the potential client.

2011 FEO 8 addresses utilizing live chat support service on law firm websites. The opinion concludes that lawyers may use a live chat support service on the lawyer’s website even though a live chat communication constitutes a real-time electronic contact. In the opinion, the website visitor made the initial contact with the firm. Similar to the ABC Texting service, the website visitor described in 2011 FEO 8 chose to visit the law firm’s website and has the ability to ignore the live chat button or to indicate with a click that he or she wishes to participate in a live chat session.

In the instant scenario, the subscriber voluntarily registered with ABC Texting expecting to receive various advertisements from various service providers, including lawyers. In addition, the subscriber is given the opportunity to accept or decline Lawyer’s offer to contact the subscriber. “It is important to note that the prohibition in Rule 7.3(a) applies only to lawyer-initiated contact. Rule 7.3 does not prohibit real-time electronic contact that is initiated by a potential client.” 2001 FEO 8. The potential for abuse that Rule 7.3 is intended to guard against is not present. Therefore, because the subscriber consents to a phone call, Lawyer may call subscriber and offer legal services.

Inquiry #3:

Does the answer to Inquiry #2 change if the second text message from ABC Texting includes Lawyer’s phone number and an invitation to call Lawyer?

Opinion #3:

No.

End Notes

• The assumption in this inquiry is that this is not a targeted communication to someone known to be in need of legal services in a particular matter. Such communications must comply with Rule 7.3(c).