Can an Ohio lawyer send text messages to solicit prospective clients?
Apply this to your situation
This page answers the general question as of 2013. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Plain-English summary
The Board addressed the practice, reported to it, of lawyers obtaining cell phone numbers from accident or police reports and sending SMS text messages that solicit professional employment. It concluded that Prof. Cond. R. 7.2(a), which lets a lawyer advertise through written, recorded, or electronic communication, reaches text messages, because a text is both an "electronic communication" and a "written communication" (Prof. Cond. R. 1.0(p)) and the comments to Rule 7.2 contemplate non-conventional advertising methods.
The Board then applied the rest of the advertising rules. Under Rule 7.1, the text cannot be false, misleading, or nonverifiable. Under Rule 7.3, the text cannot be a "real-time" electronic contact; the Board treated a standard text as more like email than an internet chat room, so it is permitted, while voice-texting that creates a live conversation would not be. The solicitation must honor any request not to be contacted and cannot involve coercion, duress, or harassment.
For messages to a person reasonably believed to need legal services in a particular matter, Rule 7.3(c) requires the text to state how the lawyer learned of the need, omit any case evaluation or outcome prediction, and conspicuously include "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY" at the beginning and end. If the recipient is a civil defendant, Rule 7.3(d) requires the lawyer to verify service through the docket first. For solicitations sent within thirty days of an accident or disaster, the Board held that the entire "Understanding Your Rights" statement of Rule 7.3(e) must appear in the body of the message itself; a link, attachment, or photo does not satisfy the rule. Rule 7.2(c) and (d) add that the text must name the responsible lawyer or firm and that the lawyer must intend to actively participate in the representation.
In practice
The opinion holds that, under the Ohio rules as they stood at the time, a text-message solicitation is governed by the same Rule 7.1 through 7.3 requirements as any other written advertisement. Per the opinion, a standard text is treated as a non-real-time communication akin to email, so it is permitted, but it must carry the "ADVERTISING MATERIAL"/"ADVERTISEMENT ONLY" labels and, within thirty days of an accident or disaster, the full "Understanding Your Rights" statement inside the message body rather than behind a link. The opinion also notes that the lawyer must comply with applicable federal and state telemarketing law, including the TCPA, the CAN-SPAM Act, and Do-Not-Call provisions.
Common questions
Q: Is text-message advertising allowed for Ohio lawyers at all?
A: The opinion concluded yes; a text is a written and/or electronic communication under Prof. Cond. R. 7.2(a), so a lawyer may use it to advertise, subject to Rules 7.1 and 7.3.
Q: Does the "Understanding Your Rights" statement have to be in the text itself?
A: For solicitations sent within thirty days of an accident or disaster, the opinion concluded the entire statement must appear in the body of the message; a link, attachment, or photograph does not satisfy Rule 7.3(e), even if that means the message splits into several texts.
Q: Can a lawyer text someone whose number came from an accident report and who is a defendant in a civil case?
A: The opinion concluded that, under Rule 7.3(d), the lawyer must first verify through the court docket that the person has been served before sending the solicitation.
Q: Is a live "voice texting" exchange treated the same as a standard text?
A: No. The opinion concluded a standard text is not real-time contact, but technology that creates a real-time or live conversation would be barred by Rule 7.3(a).
Background and rules framework
The opinion interprets Ohio Prof. Cond. R. 7.1 (false, misleading, or nonverifiable communications), 7.2 (advertising), and 7.3 (direct contact with prospective clients) (Model Rules 7.1, 7.2, 7.3). It also references federal telemarketing law (the TCPA, 47 U.S.C. 227; the CAN-SPAM Act, 15 U.S.C. 7701-7713) as external constraints the lawyer must independently satisfy.
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 7.1 (false, misleading, or nonverifiable communications) (Model Rule 7.1)
- Ohio Prof. Cond. R. 7.2 (advertising) (Model Rule 7.2)
- Ohio Prof. Cond. R. 7.3 (direct contact with prospective clients) (Model Rule 7.3)
- Ohio Prof. Cond. R. 1.0(p) (definition of "written")
Statutes:
- Telephone Consumer Protection Act, 47 U.S.C. 227; 47 C.F.R. 64.1200
- CAN-SPAM Act, 15 U.S.C. 7701-7713; 16 C.F.R. 316.1-316.6
Cases:
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), text messages are "calls" under the FCC rules
See also
- Ohio BPC Op. 2012-002: Identifying Nonlawyers on Letterhead, Websites, and Business Cards
- Ohio BPC Op. 1988-003: Legal-Aid Lawyer Direct-Mail Solicitation
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_13-002.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370
RICHARD A. DOVE Fax: 614.387.9379 MICHELLE A. HALL
SECRETARY www.supremecourt.ohio.gov SENIOR COUNSEL
OPINION 2013-2
Issued April 5, 2013
Direct Contact with Prospective Clients: Text Messages
SYLLABUS: Prof.Cond.R. 7.2 allows lawyers to use text messages to solicit
professional employment from prospective clients. However, text message
solicitations must also comply with Prof.Cond.R. 7.1 and 7.3 and all applicable
federal and state laws, rules, and regulations.
QUESTION PRESENTED: May Ohio lawyers use text messages to solicit
professional employment from prospective clients?
APPLICABLE RULES: Rules 7.1, 7.2, and 7.3 of the Ohio Rules of
Professional Conduct
OPINION:
Text Message Advertising is Generally Permissible under Prof.Cond.R. 7.2(a)
The Board has been asked to determine whether the Rules of Professional
Conduct permit Ohio lawyers to advertise their services directly to prospective
clients via text message. The technical term for ‚text messaging‛ is Short
Message Service (SMS). Masur & Maher, Mobile Phone Text Message Spam:
Building a Vibrant Market for Mobile Advertising While Keeping Customers Happy, 7
Va. Sports & Ent. L.J. 41, 44 (2007). ‚SMS text messaging systems allow users to
write and send messages using the keypads or keyboards on their cell phones.
Users can also send SMS text messages to and from email addresses or instant
messaging applications directly to the recipient’s mobile phone. However, the
ability to send and receive SMS text messages is not always included in typical
monthly cell phone plans. Many consumers pay additional monthly fees for text
message allowances while other consumers are charged…for each SMS text
Op. 2013-2 2
message that they send or receive.‛ Id. at 43-44. While SMS text messages are
similar to e-mail messages in that both are electronic exchanges of text, SMS text
messages are typically limited to 160 characters. Id. at 44. If a SMS text message
is longer than 160 characters, some devices separate the message into multiple
messages.
Text message technology is rapidly changing, and some companies
provide ‚enhanced‛ messaging services that support messages more than 160
characters on certain devices. Also, Smartphone users can access internet text
messaging applications (‚apps‛) that are free and have greater character and
image capacity.1
In the usual scenario reported to the Board, lawyers obtain the cellular
phone numbers of prospective clients from accident or police reports. The lawyer
then sends SMS text messages (hereinafter ‚text messages‛) directly to the
cellular phone numbers indicated in the reports. The messages contain direct
solicitations for professional employment. Given the limited number of
characters usually available in a standard text message, the message contains
very general information about the lawyer and his or her legal services. Often
the message will contain an internet link to a website that contains additional
advertising material.
Prof.Cond.R. 7.2(a) governs lawyer advertising and allows a broad range
of marketing techniques within the constraints of the rules on general
communication and direct contact with prospective clients. Prof.Cond.R. 7.2(a)
states as follows:
(a) Subject to the requirements of Rules 7.1 and 7.3, a
lawyer may advertise services through written,
recorded, or electronic communication, including
public media.
‚Electronic communication‛ is not defined in the Rules of Professional
Conduct (Rules), but is generally understood to include text messages. See, e.g.,
R.C. 4506.01(KK) and 4511.204(F). A text message could also be a ‚written
1Brian X. Chen, Apps Redirect Text Messages, and Profits, from Cellular Providers (Dec. 4, 2012),
http://www.nytimes.com/2012/12/05/technology/free-messaging-apps-siphon-profits-from-
cellular-providers.html (accessed Jan. 29, 2013).
Op. 2013-2 3
communication‛ for purposes of Prof.Cond.R. 7.2 as ‚ ‘written’ ‚ denotes a
tangible or electronic record of a communication or representation, including
handwriting, typewriting, printing, photostating, photography, audio or
videorecording, and e-mail.‛ Prof.Cond.R. 1.0(p). The comments to Prof.Cond.R.
7.2 fail to reference text messages, but demonstrate that the Rules were drafted to
take into account new or non-conventional advertising methods. For example,
Comment 1+ states that ‚t+he interest in expanding public information about
legal services ought to prevail over considerations of tradition.‛ Comment [3]
further states that ‚electronic media, such as the internet, can be an important
source of information about legal services, and lawful communication by
electronic mail is permitted by *Prof.Cond.R. 7.2+.‛ Because text messages may
be considered both an ‚electronic communication‛ and a ‚written
communication‛ under the Rules of Professional Conduct, a plain reading of
Prof.Cond.R. 7.2(a) indicates that lawyers may use text messages to advertise
their services. This conclusion is consistent with the forward-thinking
commentary to Prof.Cond.R. 7.2.
Text Message Advertising Must Otherwise Comply with Prof.Cond.R. 7.1-7.3
Although the Board finds that Prof.Cond.R. 7.2 allows text message
advertising, further ethical guidance is required. As stated in Prof.Cond.R.
7.2(a), all lawyer advertising must comply with Prof.Cond.R. 7.1 and 7.3. There
are also additional restrictions contained in Prof.Cond.R. 7.2 that apply to lawyer
advertising. We will now separately examine these rules in the context of text
message advertising by lawyers. Text messaging may be a novel approach to
client solicitation, but our ethical review is actually a straightforward application
of the Rules of Professional Conduct.
a. False, Misleading, or Nonverifiable Communications
Prof.Cond.R. 7.1 contains the general standard governing communications
about a lawyer’s services, and states as follows:
A lawyer shall not make or use a false, misleading, or
nonverifiable communication about the lawyer or the
lawyer’s services. A communication is false or
misleading if it contains a material misrepresentation
of fact or law or omits a fact necessary to make the
Op. 2013-2 4
statement considered as a whole not materially
misleading.
Prof.Cond.R. 7.1, Comment [1], verifies that lawyer advertising is a
‚communication‛ under Prof.Cond.R. 7.1 and therefore subject to the prohibition
against false, misleading, and nonverifiable statements. Examples of statements
that may violate Prof.Cond.R. 7.1 are found in Comments [3], [4], and [5], and
include certain descriptions of past case results, unsubstantiated comparisons
with other lawyers, characterization of fees as ‚cut-rate,‛ ‚lowest,‛ ‚giveaway,‛
‚below cost,‛ ‚discount,‛ or ‚special,‛ and statements concerning the ability to
improperly influence a government entity or official. Because text message
advertising of a lawyer’s services must comply with Prof.Cond.R. 7.1, and is a
‚communication‛ under that rule, such advertising cannot be false, misleading,
or contain nonverifiable information.
b. Real-Time Electronic Contact
Prof.Cond.R. 7.2 also makes a lawyer’s text message advertising subject to
Prof.Cond.R. 7.3, which restricts direct contact with prospective clients and
contains more detailed requirements than the general ‚false / misleading /
nonverifiable‛ standard contained in Prof.Cond.R. 7.1. Several of these
restrictions must be addressed in the context of text message advertising. First,
Prof.Cond.R. 7.3(a) prohibits live solicitation of prospective clients in most
situations:
(a) A lawyer shall not by in-person, live telephone, or
real-time electronic contact solicit professional
employment from a prospective client when a
significant motive for the lawyer’s doing so is the
lawyer’s pecuniary gain, unless either of the
following applies:
(1) the person contacted is a lawyer;
(2) the person contacted has a family, close
personal, or other professional relationship
with the lawyer.
The rationale for the prohibition against live solicitation is found in the
comments to Prof.Cond.R. 7.3, which state there is a ‚potential for abuse‛ when a
layperson is subject to the ‚private importuning of the trained advocate in a
Op. 2013-2 5
direct interpersonal encounter.‛ Prof.Cond.R. 7.3, Comment [1]. Also, ‚the
prospective client…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.‛ Id. A text message
solicitation of a prospective client is not an in-person communication, and
although it may be initiated with a cellular phone, would not ordinarily be
considered a ‚live telephone‛ conversation. As we already determined that text
messages are ‚electronic‛ communications for purposes of Prof.Cond.R. 7.2, to
comply with Prof.Cond.R. 7.3(a), a text message solicitation of a prospective
client cannot take place in ‚real-time.‛
Like Prof.Cond.R. 7.3(a), the American Bar Association’s (ABA) Model
Rule 7.3(a) also prohibits the solicitation of prospective clients by ‚real-time‛
electronic contact. The ABA has interpreted real-time electronic contact to
include internet chat room communications. Bennett, Cohen & Whittaker,
Annotated Model Rules of Professional Conduct, 553-554 (7th Ed. 2011). Chat rooms
facilitate ‚live‛ text or voice conversations among multiple persons connected to
the internet. The Board agrees that Prof.Cond.R. 7.3(a) prohibits lawyers from
soliciting prospective clients via internet chat rooms as these are real-time
electronic contacts. However, as stated in Prof.Cond.R. 7.2, Comment [3],
lawyers are permitted to advertise by email. The Board’s view is that a standard
text message is more akin to an email than a chat room communication.
Accordingly, a typical text message is not a ‚real-time‛ electronic contact.
Lawyers may likewise solicit clients using test messages so long as the
technology used to implement the text message does not generate a real-time or
live conversation. 2
c. Coercion, Duress, or Harassment
The next rule for lawyers to consider is Prof.Cond.R. 7.3(b), which states
that lawyer solicitations are impermissible if the prospective client has requested
that the lawyer not solicit them or the solicitation ‚involves coercion, duress, or
harassment.‛ Lawyers must honor the requests of prospective clients not to be
solicited by text message or otherwise, and should refrain from additional
2‚Voice texting‛ apps, for example, can be used to create real-time conversations that combine
voice and text. See David Pogue, Smartphone? Presto! 2-Way Radio (Sept. 5, 2012),
http://www.nytimes.com/2012/09/06/technology/personaltech/zello-heytell-and-voxer-make-
your-smartphone-a-walkie-talkie-david-pogue.html (accessed Jan. 17, 2013).
Op. 2013-2 6
solicitations if the prospective client does not respond. See Prof.Cond.R. 7.3,
Comment [5]. Because most text messages are received on cellular phones,
which are often carried on one’s person, lawyers should be sensitive to the fact
that a text message may be perceived as more invasive than an email.
d. Persons in Need of Legal Services in a Particular Matter
If a lawyer has a reasonable belief that a person is in need of legal services
in a particular matter, Prof.Cond.R. 7.3(c) requires all written, recorded, or
electronic solicitations to state how the lawyer became aware of the person and
their legal needs, refrain from predetermined evaluations of the matter, and
‚conspicuously‛ include the words ‚ADVERTISING MATERIAL‛ or
‚ADVERTISEMENT ONLY‛ in the text, on the outside envelope, if any, and at
the beginning and end of any ‚recorded or electronic communication.‛ Unless a
text message solicitation is sent to another lawyer, family member, or person
with a close personal or prior professional relationship with the lawyer, the text
message must comply with Prof.Cond.R. 7.3(c). Tracking the rule language, the
text message must notify the recipient of the means by which the lawyer learned
of the potential need for legal services, for example, from accident reports or a
court docket, and include ‚ADVERTISING MATERIAL‛ or ‚ADVERTISEMENT
ONLY‛ at both the beginning and ending of the message. These descriptors
must be conspicuous and in capital letters as designated in the rule. The text
message also cannot include an evaluation of the case or a prediction of the
outcome.
The lawyer has an additional obligation if the prospective client to be
solicited by text message is a defendant in a civil action. If so, Prof.Cond.R.
7.3(d) requires the lawyer to ‚verify that the *person+ has been served with notice
of the action…by consulting the court docket‛ before sending a text message
solicitation. This requirement does not apply if the prospective client is a
potential or actual bankruptcy debtor.
e. Solicitation Within Thirty Days of Accident or Disaster
The final content-based requirement of Prof.Cond.R. 7.3 is stated in
division (e), which applies to lawyer solicitations sent to prospective clients or
relatives of prospective clients within ‚thirty days of an accident or disaster that
gives rise to a potential claim for personal injury or wrongful death.‛
Prof.Cond.R. 7.3(e) mandates that the text of the ‚Understanding Your Rights‛
Op. 2013-2 7
statement contained in the rule be ‚included with the communication.‛ The
‚Understanding Your Rights‛ statement incorporates the following language:
‚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.‛ (Emphasis in
Prof.Cond.R. 7.3(e).)
Due to the limited number of characters available in a standard text
message, including the entire ‚Understanding Your Rights‛ statement may cause
the message to be split into multiple messages or fail to transmit in its entirety.
Likely for this reason, some Ohio lawyers have included an internet link in their
text message solicitations that allows the prospective client to view the
‚Understanding Your Rights‛ statement on the lawyer’s website. In the Board’s
view, simply providing an internet link to the ‚Understanding Your Rights‛
statement does not comply with Prof.Cond.R. 7.3(e). Similarly, the Board
believes that attachments or photographs containing the statement fail to satisfy
Prof.Cond.R. 7.3(e). The rule requires that the statement be ‚included with the
communication‛ and the Supreme Court’s announcement at the end of the
statement similarly indicates that the solicitation ‚must include‛ the statement.
Comment *7A+ also addresses the ‚Understanding Your Rights‛ statement,
which ‚must be communicated to the prospective client or a relative of a
prospective client.‛ Given the language ‚included with the communication,‛
‚must include,‛ and ‚must be communicated to,‛ that the Supreme Court
employed in Prof.Cond.R. 7.3(e) and Comment [7A], the Board concludes that
the ‚Understanding Your Rights‛ statement must appear in the body of the
lawyer’s communication, and not as an internet link, attachment, photograph, or
other item requiring additional action to access the statement. Although this
may create multiple messages, it ensures that all recipients, regardless of the
features on their cellular phones or service plans, have immediate access to the
information. As with any solicitation sent to prospective clients within thirty
days of an accident or disaster, the lawyer has the duty to ensure that the
‚Understanding Your Rights‛ statement is communicated to the text message
recipient. Prof.Cond.R. 7.3, Comment [7A].
Op. 2013-2 8
f. Identity of Lawyer or Law Firm Responsible for Content
Prof.Cond.R. 7.2, the general rule on lawyer advertising, contains two
additional requirements that apply to text message solicitation of prospective
clients. Prof.Cond.R. 7.2(c) states that ‚any communication made pursuant to
this rule shall include the name and office address of at least one lawyer or law
firm responsible for its content.‛ Because text message advertising is a written or
electronic communication made pursuant to Prof.Cond.R. 7.2, the text message
must include the name and office address of the lawyer or law firm responsible
for the message.
Also, Prof.Cond.R. 7.2(d) states that ‚*a+ lawyer shall not seek
employment in connection with a matter in which the lawyer or law firm does
not intend to participate actively in the representation, but that the lawyer or law
firm intends to refer to other counsel.‛ As is the case with traditional prospective
client solicitations, a lawyer may not seek employment via text message if the
lawyer does not plan to participate in the representation.
Additional Considerations for Lawyers Employing Text Message Advertising
The Board has identified three practical considerations for a lawyer who
chooses to directly solicit prospective clients using text messages. First, the text
message should not create a cost to the prospective client. Not every cellular
phone service plan includes free or unlimited text messaging, and significant
costs may be incurred if the recipient is traveling internationally when the text is
received. If the lawyer is unable to verify that a text message solicitation will not
result in a cost to the prospective client, he or she should employ ‚Free to End
User‛ or similar technology, by which the initiator of the text message is
responsible for the cost of both delivery and receipt.
Second, the lawyer should be mindful of the age of the recipient of the text
message. Minors are in possession of cellular phones in increasing numbers, and
accident and police reports may contain cellular phone numbers that belong to
minors. Such reports usually include dates of birth, and lawyers who obtain
cellular phone numbers from such reports should attempt to verify that the
numbers do not belong to minors before sending a text message solicitation.
Although Prof.Cond.R. 7.3 does not explicitly prohibit the direct solicitation of
Op. 2013-2 9
minors as in some states, the Board discourages the solicitation of minors via text
message. 3
Finally, lawyers must use due diligence to ensure that any text message
advertisement or solicitation complies with the applicable federal and state
telemarketing laws. The Telephone Consumer Protection Act (TCPA) and the
accompanying rules adopted by the Federal Communications Commission (FCC)
prohibit a number of types of text messages sent by an autodialer to a cellular
phone. See 47 U.S.C. 227; 47 C.F.R. 64.1200. Under new FCC regulations
effective in 2012 and 2013, ‚prior express written consent for autodialed or
prerecorded telemarketing calls to wireless numbers‛ is required and ‚all
prerecorded telemarketing calls [must] allow consumers to opt out of future
prerecorded telemarketing calls using an interactive, automated opt-out
mechanism.‛ 77 Fed. Reg. 112. Text messages are considered ‚calls‛ for
purposes of the FCC rules. See 68 Fed. Reg. 143, ¶ 116; Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). A lawyer’s text message solicitation
must also comply with the Controlling the Assault of Non-Solicited Pornography
and Marketing Act (CAN-SPAM Act) and the accompanying rules adopted by
the Federal Trade Commission (FTC). See 15 U.S.C. 7701-7713; 16 C.F.R. 316.1-
316.6. The CAN-SPAM Act addresses unwanted email messages sent to cellular
phones, which may appear as text messages. Further, lawyers are required to
abide by federal ‚Do Not Call‛ provisions. See Prof.Cond.R. 7.3, Comment [2];
15 U.S.C. 6151; 16 C.F.R. 310.4. Applicable state laws include R.C. 109.87, which
authorizes the Ohio Attorney General to enforce the TCPA, and R.C. 2307.64,
which regulates email advertisements. Before a lawyer engages in direct client
solicitation by text message, the Board advises that the lawyer carefully
scrutinize the message and delivery mechanism for compliance with all
applicable federal and state laws, rules, and regulations.
CONCLUSION: Lawyers may advertise their services through SMS text
messages, which are written and/or electronic communications for purposes of
Prof.Cond.R. 7.2(a). All lawyer advertising, including text message advertising,
must comply with Prof.Cond.R. 7.1 and 7.3. Under Prof.Cond.R. 7.1, the text
message may not contain a false, misleading, or nonverifiable communication
about the lawyer or the lawyer’s services. Prof.Cond.R. 7.3 imposes five
additional requirements that apply to text message advertising by lawyers:
3For references to state rules that regulate lawyers’ direct solicitations of professional
employment to minors, see Smolla, 1 Law of Lawyer Advertising 7:9 (Oct. 2012).
Op. 2013-2 10
The text message cannot create a ‚real-time‛ interaction similar to an
internet chat room;
The text message may not involve coercion, duress, or harassment, and
the lawyer must abide by a person’s request not to receive solicitations;
If the lawyer has a reasonable belief that the prospective client is in need
of legal services in a particular matter, the text message must state how
the lawyer learned of the need for legal services, include the language
‚ADVERTISING MATERIAL‛ OR ‚ADVERTISEMENT ONLY‛ at both
the beginning and ending of the message, and cannot offer a case
evaluation or prediction of outcome;
If the prospective client is a defendant in a civil case, the lawyer shall
verify that the person has been served; and
Text message solicitations sent within 30 days of an accident or disaster
must include, in the body of the text message, the entire ‚Understanding
Your Rights‛ statement contained in Prof.Cond.R. 7.3(e).
In addition, under Prof.Cond.R. 7.2(c) and (d), the text message must
include the name and address of the responsible lawyer or law firm and the
lawyer may not solicit prospective clients if the lawyer does not intend to
actively participate in the representation. The Board further recommends that
lawyers employ ‚Free to End User‛ or other technology to avoid creating a cost
to the text message recipient and attempt to verify that the text message recipient
is not a minor. Finally, the Board advises lawyers to confirm that their text
message advertising complies with all applicable federal and state laws, rules,
and regulations, including the TCPA, CAN-SPAM Act, and Do Not Call
Registry.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court Rules
for the Government of the Bar of Ohio, the Supreme Court Rules for the
Government of the Judiciary, the Ohio Rules of Professional Conduct, the
Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.
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