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Can Lawyers Text Message Prospective Clients?

There are quite a few issues surrounding communicating with potential clients via text message. And while we're unaware of any outright statutory prohibition on communicating via text once contact has been initiated, getting to that step can be ripe with conflict.

Fortunately, for the many attorneys that have adopted the strategy of marketing via text message, an increasing number of states are okaying the practice and treating text messages like e-mail or other written communications. However, there are definitely some boundaries that it would be wise not to cross, unless you're looking to put your license on the line to cause an ethical stir.

You're a Mobile Lawyer in a Mobile World

At the outset, it is important to differentiate between text message marketing, and a direct solicitation. Generally, targeted solicitations to non-lawyers, non-family members or close friends, or non-former/current clients, is prohibited. However, most state bars allow attorneys to send general solicitations advising the public of their availability for work. But if that general solicitation is targeting a specific person, or a discrete group of people that need a specific type of representation that you offer, you could be in some seriously hot ethical solicitation waters.

As the ABA Journal explained, if a person has agreed to receive marketing communications via text message, then generally, a mass text message advertisement can be done ethically, so long as the communication does not violate other state bar ethics rules.

Life in SMS, It's a Mess

When it comes to the new world of digital and mobile marketing, lawyers that don't adapt to the times are likely to get left behind. With an increasing number of people relying on their mobile phones as their primary tool for accessing the internet, text message advertisements are becoming more and more common.

While there is already a complex scheme of regulations that govern this type of direct advertising (such as requiring opt-out procedures), for attorneys it's even more complex. For example, in Florida, a general text message solicitation is treated like any other written solicitation and must contain info about the attorney's qualifications, how the attorney got the contact info, and that the message should be discarded if the person already has counsel. Ohio has similar, but even more onerous, restrictions.

Note: If you are considering text message advertising, check with your state's local ethics committee. There may be recent advisory opinions specific to your state that can provide the appropriate guidance.

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