Question
I heard that some lawyers are texting people who have been in accidents and seeking to represent them. Doesn’t this violate the ethics rules?
Answer
It is probably not a violation of the ethics rules on advertising, but only if the lawyer is taking appropriate precautions to comply with the Rules of Professional Conduct.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee.
"Even if texting a prospective client does not violate the Rules, the medium does not allow for an effective display of information."
One question that has been raised about texting prospective clients is whether the texting constitutes “real-time electronic communication,” which, if the lawyer is contacting someone the lawyer knows to be in need of legal services, is prohibited under the ethics rules concerning advertising. The spontaneity and pervasiveness of texting have suggested that texting is a real-time electronic communication as that term is defined in the Rules.
In a recent ethics opinion, the Ohio Supreme Court Board of Commissioners on Grievances and Discipline (OP. 2013-2, April 5, 2013) concluded that texting does not constitute “real-time” communication with a prospective client, because it does not constitute live solicitation and therefore is not prohibited under Rule 7.3(a). Wisconsin SCR 20:7.3(a) is similar to the Ohio rule, so a strong argument can be made that texting a prospective client in Wisconsin does not fall under the prohibition against real-time electronic communication.
A text sent to a prospective client must comply with all the other advertising rules even though the medium used does not allow for a very effective display of information.
If you text, you must comply with these Rules. If a lawyer is using a text message to communicate about her services, the lawyer must adhere to several requirements under the Wisconsin Supreme Court Rules:
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The text message must not be false or misleading, so the message may not 1) contain a material misrepresentation of fact or law, 2) create an unjustified expectation about results, 3) compare the lawyer’s services to other lawyers’ services unless the information can be factually verified, 4) contain a paid endorsement or testimonial unless there is disclosure of any special consideration given for the endorsement, or 5) fail to identify if the testimonial or endorsement is not made by an actual client.
The text message may not be sent if the lawyer knows that the prospective client does not want to be contacted or solicited about the incident.
There is no specific timeline that must be followed; however, the lawyer may not send a text to a prospective client if the lawyer knows or reasonably should know that the prospective client is suffering from effects of the incident such that the person cannot exercise reasonable judgment about hiring a lawyer. A lawyer knows that such Is the case either by actual knowledge or inferring knowledge from the circumstances (see SCR 20:1.0(g)).
The text message must be preserved in some fashion by the lawyer and sent to the Office of Lawyer Regulation (OLR) within five days of being sent to the prospective client. Lawyers often use a model document and send that to the OLR with a statement as to how and when the communication is being sent to prospective clients.
The text message must indicate at both its beginning and its end that it is “advertising material.”
The text message must include the name and office address of the lawyer or law firm sending the message.
The use of a text message to communicate with a prospective client must also comply with applicable state and federal laws such as the do-not-call registry and regulations concerning spam. Another important consideration is the possibility that the recipient of the text message will be charged for its receipt. Lawyers should do everything possible to avoid any charge being made to the recipient of the text message. Charging the recipient for the text message may fall under the fee rule (SCR 20:1.5) but even it does not, the charge certainly will annoy the recipient.
In sum, text messages may be used to contact prospective clients about representation, as long as lawyers who do so comply with the advertising rules in SCR 20:7.1–7.4.
