When is a phone not a phone?

In a world where people use their smart phones for seemingly everything, including actually talking to other people on the phone from time-to-time, an interesting ethics issue has been percolating in the world of attorney advertising.  Namely, for purposes of the ethics rules that exist to restrict how lawyers can go out about actively soliciting clients, are text messages supposed to be treated more like email or more like a telephone conversation?  Depending on the nature of your practice, it can be an important question because most lawyers are well aware that phone calls to solicit business from someone with whom you don’t have the kind of prior professional, or close personal, relationship to create an exception are a no-no.  But e-mailing someone to do the same thing tends to be generally understood to be more like a letter and, while not outright prohibited in most jurisdictions, just have to make sure to comply with whatever requirements a jurisdiction has for solicitation letters.

Unfortunately (or fortunately I guess depending on your point of view), it looks like it will be Florida that weighs in with the first ethics opinion addressing the question.  And I say “will be,” because weirdly though I am blogging about this on May 28, the news item put out by the Florida Bar on the website is dated 4 days from now on June 1.

Florida is notoriously restrictive when it comes to its approach to the regulation of lawyer advertising issues so, in a way, this is not a surprise even though an article from earlier in May made it appear that they were struggling a bit with what to decide.  It is interesting to hear that at least part of the rationale appears to be tied to an interpretation of Florida’s advertising Rule 4-7.18(a) as prohibiting the use of telephones to make direct solicitations rather than telephone “calls.”

I’m not sure I agree with that interpretation after a quick review of their language (which for goodness sakes also treats facsimiles and telegraphs as outright prohibited direct solicitation), and I also wonder whether that opens up the question of whether a Florida lawyer now would have to be worried about sending an email if they happen to believe it likely that the recipient will view the email on the telephone or, perhaps of more concern, whether they can use their own phone to send the email to the recipient.

I tend to think that the answer turns on the language of any particular rule being examined.  As an example, I think that the answer to the question in Tennessee has to be that a text message solicitation to someone you don’t know (i.e. doesn’t fall within the group of unprotected folks described in (a)(1)-(3)) is prohibited by RPC 7.3(a) because it is a “real-time electronic contact.”  Our RPC 7.3(a) reads:  “A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client ….”

In that regard, the answer to the question in Tennessee shouldn’t turn on some strained interpretation of the words “live telephone” as meaning something broader than “calls.”  Thus, the point isn’t that the person is physically seeing the message on their phone (after all, as noted above, they likely would be viewing your email on their phone as well) or that the lawyer is using a phone to send the text.  Instead, it turns on the notion that texts, unlike emails, have become “real-time electronic contact.”  These days, if a question can wait then you can ask it by email but if you are looking for an immediate response, you need to send a text.

But, in a state like Tennessee that has the “real-time electronic contact” language, the underlying talking points relied upon by the Florida Bar would be highly relevant.  For most users, texts like phone calls, are set up to interrupt what you are doing with a noise or sound that prompts you in an almost-primal fashion to have to go read it.  Further, the most used text services also transmit real time information about whether the recipient has read the message and, with the dreaded ellipses, can even show you if they are in the middle of composing a response.

Now, whether that is good public policy or bad public policy… I’ll save that discussion for some other time.

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