I have no personal experience with this, but there are studies that have found that text message advertising is more effective than email campaigns. I hear that it works better because it is simple, fast, and won’t break the bank. However, the question lawyers must ask is whether text messaging to potential clients violates the ethics rules that govern lawyer advertising.
Consider the following scenario. Scroll all the way down for answer. Good luck!
Alan represents clients in bankruptcy matters and is trying to decide whether he should try text message advertising with Acme Texting. Subscribers to Acme Texting receive messages for products and services. Subscribers can opt at anytime. Alan’s advertising would be sent via text message to Acme subscribers. The exchange would go like this:
Text: Do you have a lot of debt? If so, type yes.
Text: Thinking about debt relief but don’t know where to start? If so, type yes.
Text: Would you like to learn more about how you can get debt relief? If so, type yes.
The subscriber would then receive a link to Alan’s contact information and a link to his website.
Are there any ethical concerns?
(a) Yes. Alan should not sign up with Acme Texting. This is a direct solicitation that could be a potential violation of Rule 7.3 which prohibits a lawyer from making direct contact to solicit professional employment when a significant motive is for the lawyer’s pecuniary gain.
(b) No. Alan should sign up and give it a try. Since it is directed to the general public, it sounds like advertising on a billboard or website.
Take a minute to come up with your answer.
The correct answer is B.
The scenario is loosely based on the North Carolina Opinion 1 (2017) which concluded that texting through a service that gives subscribers the option to receive messages is not a solicitation. Since subscribers have the option to either receive messages or opt out, solicitation by text was seen more like a billboard or website where there is little concern for undue influence or intimidation. The opinion also provides that the advertisement must include Alan’s name and contact information.
You can read the opinion in full; and you may want to also read Ohio Opinion 2013-2 (2013) which reached the same conclusion.
Always check the opinions in your jurisdiction and/or consult with an ethics attorney. If you have tried text message advertising, let us know if it helped you get clients.