North Carolina State Bar 2017 Formal Ethics Opinion 1
April 21, 2017
Topic: text message advertising
The Opinion clarifies that lawyers may use the text message advertising that allows the user to initiate a live telephone communication, provided it complies with North Carolina Rules of Professional Conduct 7.1, 7.2, and 7.3, and all applicable federal and state laws, rules, and regulations.
By way of background, 2017 Formal Ethic Opinion 1 opines on whether a lawyer may advertise through a short text message service – SMS – (ABC Texting) that provides a free subscriber-based text messaging service. Subscribers go to the ABC Texting website and register by providing only a cell phone number and zip code. Once registered, subscribers receive text messages from ABC Texting for various products and services, including, but not limited to, messages from lawyers offering legal services in the subscriber’s specific zip code. The lawyer’s advertisements would include a link to the lawyer’s website. The subscriber will have the option to click on the link or delete the text message. If the subscriber chooses to click on the link, he will be directed to Lawyer’s website. The website provides information about Lawyer’s firm, including areas of practice, location, contact information, and Lawyer’s profile. Subscribers can unsubscribe at any time.
According to 2017 Formal Ethic Opinion 1, the communication as described above is not a prohibited live telephone or real time electronic contact, and it is akin to billboard or banner advertisement directed to the general public. However, before being sent to subscribers, the text of the advertisement must be revised to comply with RPC 7.2(c). The advertisement must include the lawyer’s name (or law firm name) and office address, or a website address wherein the lawyer’s office address can be found.
The Opinion highlights that the subscriber voluntarily registers with the text message service and expects to receive various advertisements from various service providers, including lawyers. In addition, the subscriber can either accept or decline the lawyer’s offer to contact the subscriber.
The answer to the ethical inquiry would not change even if a second text message would include the lawyer’s phone number and an invitation to call her.
Francesca Giannoni-Crystal & Federica Romanelli
For more information on lawyer advertising, contact Crystal & Giannoni-Crystal, LLC
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Rules: NCRPC 7.1 (which requires all communications about a lawyer and the lawyer’s services to be truthful and not misleading); 7.2(a) (which permits to advertise services through written, recorded, or electronic communications subject to the requirements of Rule 7.1 and Rule 7.3); 7.2(b) (which permits to pay the reasonable costs of advertisement or communications permitted by the rule); 7.2(c) (which requires that any communication about the lawyer or the lawyer’s services include the name and office address of at least one lawyer or law firm responsible for the advertisement); 7.3 (which limits direct contact with potential clients for the purpose of soliciting business).
Mentioned Ethic Opinions:
2006 FEO 17 – autodialed recorded message to potential clients
2011 FEO 8 – utilizing live chat support service on law firm website
Related ethics opinion
Ohio Board of Commissioners on Grievances & Discipline Opinion 2013-2
The full text of the 2017 Formal Ethic Opinion 1 is available at https://www.ncbar.gov…
Originally published on Technethics on November 2017