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A Quick Message About Quick Messages

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Advertising is a great way to get your name out there and generate some business.  In particular, text message advertising can be a highly effective strategy that some attorneys have embraced.  Marketing statistics show that over 90% of Americans own a cell phone, and we check our phones dozens of times per day.  Most people read text messages within 30 minutes of receiving them.  Text messaging can be a great way to reach potential customers quickly.

If you are currently using text message advertising, or are considering using it, we have a quick message for you — be careful!

The North Carolina State Bar adopted a formal ethics opinion in 2017 that addressed text message advertising.  In 2017 FEO 1, the first inquiry was whether a lawyer could advertise through a subscriber-based text messaging service. The service sold text message advertising to businesses that wanted to advertise to subscribers in a specific zip code. Consumer subscribers registered on the service’s website by providing a cell phone number and zip code, and no other information. Once registered, subscribers received text messages for various products and services, and they could unsubscribe at any time.

The opinion ruled that a lawyer could advertise through such a text message service, provided the lawyer’s advertising complied with Rules 7.1, 7.2, and 7.3, “and all applicable federal and state laws, rules, and regulations.”

That last phrase deserves close attention.  2017 FEO 1 opined only on whether the text message advertising would be permitted under the Rules of Professional Conduct.  The lawyer must still undertake their own separate analysis regarding whether their text message advertising complies with federal and state law.

The federal Telephone Consumer Protection Act, 47 U.S.C. § 227, and Article 4 of Chapter 75 of the NC General Statutes both regulate telephone solicitation including by text messaging.  Among other things, these laws restrict text message advertising without the consumer’s prior explicit written permission.  Violations are subject to heavy penalties that can bankrupt a business.

If you are using or considering text message advertising, please do your due diligence and make sure you are in compliance with ALL the applicable laws, rules, and regulations.  Our firm can assist you with advice regarding compliance with the advertising rules of your licensing authority.

ABOUT Dauna L. Bartley Dauna represents professionals before various licensing boards and administrative agencies, counsels clients on ethics, disciplinary, and licensing matters, and provides general employment law advice and compliance counseling. To read Dauna's full bio, click here