Targeted Direct Texting
July 29, 2016
There is a newly proposed ethics opinion (October 2016) which will supersede the information in this blog.
Lawyers are familiar with targeted direct mail solicitation, and even if you don’t do it, you know there are ethics rules that apply. Targeted direct mail presumes that you know of a particular legal need of a prospective client, and you communicate with that person about the need for services. Rule 7.3(c). Unless you’ve sent one of these letters, you may not know that there are lots of ethics requirements that govern the minutiae of sending a targeted direct mail letter, especially regarding the font size, thickness, darkness, color, placement and conspicuousness of the advertising disclaimer. These rules are not simply to be generally adhered to; they must be followed to the letter. They are strictly construed. Some of the requirements are subjective (no writing more conspicuous than the advertising disclaimer), so you should go above and beyond to be sure “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES” is absolutely the most conspicuous printing anywhere on the envelope and on the direct mail letter.
What about targeted direct electronic communications? There are rules for that too. Like the direct mail rules, these rules are designed to inform the public that the communication is an advertisement, but also may have the effect of squashing any creative, novel, eye-catching message designed to grab the attention of your reader. The advertising notice (think big and all caps) must be in the subject line or header of the email. The advertising notice must also appear at the beginning and ending of any electronic communication. Then there are restrictions about the fonts, color, and size of the disclaimer, and finally, the disclaimer must be the most conspicuous printing (think HUUUGE – for the Bernie and Trump supporters).
Do these rules allow for targeted solicitation via text? It is unclear. Certainly the rules permit targeted solicitation through electronic communications. Texting, however, does not have a subject/header field to include the advertising disclaimer. Arguably, any electronic communication lacking this field could be banned as a method of targeted advertising under the Rules. In addition, by the time you include the advertising disclaimer at the beginning and ending of a text, it may not matter what you include in the middle because the text will be so long that you will likely have lost your reader anyway. There does not appear to be an ethics opinion on this issue, although there is a proposed ethics opinion about using texting to advertise when a recipient has signed up for an advertising service. This kind of texting service would not require the use of the disclaimer, as there is no known need for legal services. In addition, there appear to be some federal laws that may restrict this kind of advertising altogether. See CFR 64.1200. My advice: don’t use texting for targeted advertisements–at least not without asking the State Bar first.