While lots of ethics discussions and regulatory efforts have been focusing on more advanced technology like Generative AI, Pennsylvania has been laser-focused on making it unethical for lawyers to use text messages as a means of soliciting clients in more ways than one.
In October 2024, the Pennsylvania Supreme Court adopted revisions to its RPC 1.8(j) to make clear that its ethical prohibitions on sex with clients also applied to communications, such as “sexting,” which are sexual in nature. Pennsylvania has done this in a way that is hard for people of my age to read in a voice other than President Clinton’s. Specifically, the Court added the following language to its rule: “‘Sexual relations,’ includes but is not limited to, communications of a sexual nature.” I have to say that is likely the correct thing to do if you are a jurisdiction that has decided to adopt the ABA Model Rule approach of crafting an entirely separate conflict rule to address the topic.
But I still think the better overall approach is what we did with the rules in Tennessee: explaining that the entire topic is simply a variety of a material limitation conflict arising from the lawyer’s personal interests that should be addressed under the more general overall conflict rule, RPC 1.7. We laid out the issues associated with sexual relationships involving a lawyer in a series of three Comment paragraphs. Tenn. Sup. Ct. R. 8, RPC 1.7 cmts. [12, 12a, & 12b].
Pennsylvania’s other crackdown on lawyers and texting, however, is much less defensible. In 2021, Pennsylvania launched an effort that was supposed to be seeking to amend its rules on lawyer advertising to track changes made to the ABA Model Rules – changes that were primarily aimed at making it easier for attorneys to advertise – but that effort derailed a bit when it comes to text message advertisements.
When the Pennsylvania Supreme Court approved the overall proposed package of revisions in October 2024 it included language that treated text messages as “live person-to-person” contacts and, thus, something for which it would be unethical to use to generally solicit clients.
The ABA Model Rules, on the other hand, treat text messages similarly to email and not something that would be looked upon as the equivalent of an “in person” solicitation.
The Pennsylvania rule, which went into effect in the middle of November 2024, has been made the subject of a lawsuit challenging the revision on constitutional grounds brought by a marketing company that had contracts in place with Pennsylvania attorneys that included generating business for those lawyers through text-message marketing campaigns.
While I am not at all sure of whether any constitutional challenge is viable, from a public policy perspective it makes little sense to treat text messages as the same as real-time, in-person conversations under any circumstances but certainly not when it comes to regulating the marketing efforts of lawyers.