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:
"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 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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