Florida Bar Overturns Text Solicitation Ban on Attorneys

By Elaine Silvestrini | September 16, 2015

You’ve just been in a car accident or accused of a crime. You’re confused and overwhelmed. You need help and don’t know where to turn.

Just at your most vulnerable moment, a lawyer steps forward and slips you his card. He’ll get money from the person who hit you. He’ll get the charges tossed, he assures you.

He just committed an ethical violation and could face discipline by the state bar. He’s not even allowed to call you on the telephone to suggest that you hire him.

But he can send you a text message, according to a recent decision by the Florida Bar.

In-person solicitations by attorneys are forbidden because, as the American Bar Association says, “The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.”

In February, staff and a committee of the Florida Bar said the ban on in-person solicitations also bars text messages because the ban includes telephone communications.

But the Bar’s board of governors in July reversed that ruling, concluding that texts are more like emails, which are allowed, than phone calls.

“It’s an adaptation to reality,” said Bar President Ramon Abadin. “Most people communicate by mobile data devices that happen to be phones, too.”

The change, he added, is “part of the national dialogue. It’s what we should be doing as professionals. We should be looking at how best to serve our clients. What are the ways they want to be communicated with and what are the ways they don’t want to be communicated with? And what are the ways lawyers can best communicate with their clients?”

The issue arose when law firms asked the Bar if they could send texts seeking business.

The Orlando law firm that sent the second inquiry – the one that succeeded – sent a proposal describing how it planned to obtain information about criminal defendants from court records and send texts to the ones whose email addresses weren’t available.

“Criminal charges can change your life forever,” a sample message says. “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.”

The firm argued that text messages look virtually identical to emails on smartphones.

The firm provided census data that showed 90 percent of Florida adults have at least one mobile device, including phones, laptops and tablets. And 90 percent of them report using their devices for text messaging.

Americans between 18 and 29 years old send and receive 88 text messages a day, compared to 17 phone calls, according to the firm’s presentation.

Abadin said the young lawyers who made the presentation “were exceptional. … They reflected an important change in our culture.”

The board concluded that the Bar needs to adapt to the change.

Why hasn’t this issue come up before this year? “I think lawyers tend to be a little bit more conservative than others, so they don’t tend to jump into things as quickly as other people,” said Elizabeth Tarbert, ethics counsel for the Bar.

There are restrictions on the content of the texts, which have to begin with the word “advertisement” and include a statement of the lawyer’s qualifications and how the recipient’s information was obtained. The texts also have to instruct the recipient to disregard the message if the recipient already has a lawyer.

In the case of bad car wrecks, lawyers have to wait at least 30 days before sending any solicitations in any form.

The law firm has to pay any costs the recipient incurs from getting the texts, and the recipient also has to have the ability to refuse to receive subsequent texts.

And the text senders have to follow all other legal requirements, abiding by all federal and state laws.

One of those laws is the Telephone Consumer Protection Act, which prohibits the use of automatic dialing systems to send texts or robocalls without prior written consent from the recipient, according to Ian Leavengood, managing partner of Leaven Law in Pinellas County.

Given that, Leavengood said, he thinks it would be “very hard” for a law office to engage in mass solicitation of potential clients. The business would have to employ someone to dial each number rather than using an automatic dialing device or program. Prohibited programs would include a smartphone app that automatically sends texts to people in the phone’s contact list.

The penalties for breaking this law can be staggering, Leavengood said. Such marketers are targets of class action lawsuits that can result in payments of $500 per text or call.

“This is another form of direct marketing,” Leavengood said. “It’s just using technology. I don’t think there’s that many attorneys out there that would be doing this kind of marketing.”

Legal ethics professor Jan Jacobowitz says the law profession has always been slow to adapt to new technology so it’s no surprise the Florida Bar is only now addressing whether lawyers can solicit business via text messages, and apparently is one of the only states that has considered the issue. Ohio reached a similar conclusion in 2013, and Jacobowitz said she was unaware of any other state bar organizations that have ruled on texts.

“Florida has one of the most detailed set of advertising regulations in the country,” Jacobowitz said, “and many would say one of the most conservative or paternalistic or however you want to describe it. In other states, people might be doing it and they’re not asking for permission and no one’s complaining about it.”

Some early, prominent lawyers resisted the use of the telephone when it first came into use, Jacobo¡witz said. They thought using a phone wasn’t as professional as meeting with a client in person or hand-delivering a letter.

Jacobowitz said the Bar is trying to conform to rules developed in the days when print advertising was predominant to today’s technology.

“The texting thing is just the latest digital challenge to the rules,” said Jacobowitz, who is director of the professional responsibility and ethics program at the University of Miami School of Law.

Robert E. Atkinson Jr., who teaches legal professionalism and ethics at the University of Florida School of Law, said he thinks the Florida Bar would like to have banned solicitations via text but knew it would lose if the rule was appealed in federal court.

“I think it’s probably compelled by Supreme Court cases,” he said.

Atkinson said the Bar is controlled by elite, moneyed lawyers who look askance at what they consider their lesser brethren, such as personal injury and criminal defense lawyers, who stand to benefit the most from more liberal rules for soliciting clients.

To illustrate how the rules are set up to benefit corporate lawyers, Atkinson described a scenario:

There’s a wreck on the highway and the driver of one car is injured.

Two lawyers approach.

One offers to help the driver get his medical bills paid by the person responsible for causing the wreck.

The other lawyer represents the person who just ran the driver off the road. He wants to persuade the driver to sign a release form absolving his client.

The lawyer who wanted to help would be violating ethics rules, Atkinson said. The other lawyer would be in the clear.

“It’s just bizarre,” Atkinson said. “They’re trying to restrict lawyers’ access to clients as much as they can. They don’t like personal injury lawyers.

“People with their business wealth and their lawyers tend to come from elite law schools work at elite firms and the bars traditionally disfavor the noncommercial and more personal work,” Atkinson said.

Abadin, the Bar president, said that’s not true. The board of governors, he said, is made up of “a nice cross section” of lawyers from all kinds of practices, large and small, as well as solo practitioners.

“The board is relatively diverse across practices,” he said.

He said the reason the board changed its mind about texts is because it is attuned to the changing environment in which lawyers work.

“The board is now, more than ever, very interested in issues coming out of 2016 which involve technology and the changes in our profession fueled by technology,” Abadin said.

Still, this may not be the last word on lawyers soliciting new clients via text messages.

“Nothing’s set in stone,” Jacobowitz said, adding that if the Bar is inundated with consumer complaints, it might revisit the translation of the rules.

Abadin agreed. “It depends on who’s complaining and what the complaints are,” he said.

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