Late last week, the Columbus Dispatch seized upon a months-old advisory opinion by the Ohio Supreme Court which, in theory, allows lawyers to text potential clients.
Phone call and in-person solicitation is not allowed, nor is chat room solicitation, but apparently spamming someone's phone with a string of text messages is Ohio-approved.
Except, in reality, it really isn't. The opinion, while technically allowing text-based solicitation, carefully avoids First Amendment complaints (even with the limited protections allowed for commercial speech), yet places so many restrictions on texting that it is nearly impossible to pull off a successful texting campaign.
Ohio's Text-Soliciation Restrictions
Want to solicit via text in Ohio? Here's what you have to do:
- No real-time interaction, "similar to an internet chat room," which means the client can't text back;
- No coercion, duress, harassment, and opt-out requests must be honored;
- "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY" must be present at the beginning and end of each text;
- No case evaluations or predictions;
- If recipient is a defendant in a civil case, they must have been served;
- Texts sent within 30 days of an accident must include this statement, in all-caps:
"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"
- The above disclaimer can't be buried in a link, nor can it be attached as a picture message;
- The text must include the name and office address of the lawyer;
- The lawyer must pay for the cost of sending and receiving the text message(s);
- The lawyer should attempt to verify that the recipient is not a minor;
- The Board also notes that the federal Telephone Consumer Protection Act (TCPA) and the accompanying rules adopted by the FCC require prior express written consent before text-spamming, and there has to be an instant opt-out mechanism. Plus, there is also the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), which has its own set of FCC rules.
The short version? All the state rules, and the federal laws, make text-based solicitation technically legal, yet practically impossible.
So You're Saying There's a Chance?
Yes. If the lawyer can sign up for a texting service where he covers the cost of sending and receiving the text, and it has an opt-out mechanism, and that "prior express written consent" is somehow dealt with (Win a Free Car! Just sign up for this drawing, which opts-in to text marketing!), there may be a way.
What would such a text look like? Perhaps something like this:
"ADVERTISEMENT ONLY-Hurt? Im Lwyr.Sue4u.-John Doe 375 S. Main St Columbus OH 43215-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-ADVERTISEMENT ONLY"
That's 372 characters, including spaces. But as we all know, a text message is limited to 160 characters, which means this is at least three texts long.
You'd also probably want to include a phone number. And since the text will be split into multiple texts, the exact language of the opinion may require "ADVERTISEMENT ONLY" at the beginning and end of each, which would stretch the message to five or more texts.
Like we said, practically impossible. Stick with viral commercials instead.
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