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Law Firm Text Message Ads Didn't Violate TCPA

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By George Khoury, Esq. on July 27, 2018 7:00 AM

For one personal injury law firm in Ohio, a recent federal court ruling is letting them off the hook for their jaw-dropping (and brilliant) advertising scheme.

Apparently, the firm, or the agency they contracted with, would find the names and phone numbers of individuals who had recently been involved in car accidents from police reports, and send those individuals text message advertisements for personal injury legal services. The firm and the contracted ad agency were sued by two recipients of the messages claiming the firm was using an auto-dialer in violation of federal law.

A Person Clicked Send

The law firm maintained that each of the text messages was actually sent by a human hand and that no auto dialer was ever used. But part of the problem in this case was the shifting definition of an auto-dialer, which over the past few years has gone from narrow, to expansive, and then back again. The court found that the complaint did not allege facts that the firm used an auto-dialer.

Notably though, this sort of targeted advertising scheme is becoming less and less uncommon. Just recently it was reported that injury law firms were starting to use geofencing to target their advertising in the areas surrounding hospitals. Geofencing allows online advertisers to limit the display of ads to rather limited geographic areas.

Ethics of Lawyer Text Message Ads

The issue of text message ads for lawyers and law firms is certainly something that will vary from jurisdiction to jurisdiction. Generally, a text message ad will need to follow ethical rules for solicitations, but often there are more onerous rules. For example, in Ohio, a few years ago, specific rules were created for text message ads

Given that an increasing amount of legal consumers are finding their attorneys using smart phones, sending advertising directly to a consumer's most frequently used device could potentially prove effective.

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