At its meeting on January 27, 2017, the State Bar Council adopted the ethics opinions summarized below:
2016 Formal Ethics Opinion 3
Negotiating Private Employment with Opposing Counsel
Opinion rules that a lawyer may not negotiate for employment with another firm if the firm represents a party adverse to the lawyer’s client unless both clients give informed consent.
2016 Formal Ethics Opinion 4
Disclosing Confidential Information to Execute on a Judgment for Unpaid Legal Fees
Opinion rules that lawyer may not disclose financial information obtained during the representation of a former client to assist the sheriff with the execution on a judgment for unpaid legal fees.
At its meeting on January 26, 2017, the Ethics Committee voted to continue to table proposed 2016 Formal Ethics Opinion 1, Contesting Opposing Counsel’s Fee Request to Industrial Commission, pending the conclusion of appellate action on cases relevant to the proposed opinion. The committee also voted to publish a new proposed opinion which appears below.
The comments of readers on proposed opinions are welcomed. Comments received by April 10, 2017, will be considered at the next meeting of the Ethics Committee. Comments may be emailed to ethicsadvice@ ncbar.gov.
Proposed 2017 Formal Ethics Opinion 1
Text Message Advertising
January 26, 2017
Proposed opinion rules that lawyers may advertise through a text message service that allows the user to initiate live telephone communication.
ABC Texting is a Short Message Service (SMS) that provides a free subscriber-based text messaging service. Subscribers go to the ABC Texting website and register by providing a cell phone number and zip code. No other information is provided. Once registered, subscribers receive text messages from ABC Texting for various products and services, including, but not limited to, messages from lawyers offering legal services in the subscriber’s specific zip code. Subscribers can unsubscribe at any time. ABC Texting earns revenue by selling text message advertising to businesses and professional service providers that wish to advertise to subscribers in a specified zip code.
Lawyer represents clients in workers’ compensation matters and would like to purchase advertising with ABC Texting. Lawyer’s advertisements would be sent via text message to ABC Texting subscribers. The text message advertisement will state, “Injured at work? We can help.” The text message will also include a link to Lawyer’s website. The subscriber will have the option to click on the link or delete the text message. If the subscriber chooses to click on the link, he will be directed to Lawyer’s website. The website provides information about Lawyer’s firm, including areas of practice, location, contact information, and Lawyer’s profile.
May Lawyer advertise through this text message service?
Yes, provided the text message advertising complies with Rules 7.1, 7.2, and 7.3 and all applicable federal and state laws, rules, and regulations.
Rule 7.1 requires all communications about a lawyer and the lawyer's services to be truthful and not misleading. Rule 7.2(a) permits a lawyer to advertise services through written, recorded, or electronic communications subject to the requirements of Rule 7.1 and Rule 7.3. Rule 7.2(b) permits a lawyer to pay the reasonable costs of advertisement or communications permitted by the rule. Rule 7.2(c) requires that any communication about the lawyer or the lawyer’s services include the name and office address of at least one lawyer or law firm responsible for the advertisement. Rule 7.3 limits direct contact with potential clients for the purpose of soliciting business.
Advertising through the ABC Texting service is an electronic communication about Lawyer’s services. However, it is not a solicitation that requires the extra precautionary measures set out in Rule 7.3(c) governing targeted communications.1 Comment  to Rule 7.3 provides,
A solicitation is a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website, or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.
Text message advertising as described herein is akin to billboard or banner advertisement directed to the general public. Therefore, Lawyer may advertise through ABC Texting. However, before Lawyer can allow ABC Texting to send his advertisement to subscribers, the advertisement must be revised to comply with Rule 7.2(c). The advertisement must include Lawyer’s name (or law firm name) and office address, or a website address wherein the lawyer’s office address can be found.
If the answer to Inquiry # 1 is yes, may Lawyer use text message advertising if the subscriber has the option to reply to the text message as follows:
ABC Texting: Have you or someone you know been injured at work? If so, type YES.
ABC Texting: Lawyer can help. May we contact you at this number? If so, type YES.
ABC Texting: Thank you. A representative will contact you soon.
If the subscriber replies YES to both questions, ABC Texting provides the subscriber’s cell phone number to Lawyer. Lawyer will then contact subscriber directly.
Yes. The communication as described above is not a prohibited live telephone or real time electronic contact.
Rule 7.3(a) provides that, “[a] lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client when a significant motive of the lawyer's doing so is the lawyer's pecuniary gain.” Comment  explains the prohibition as follows:
There is a potential for abuse when a solicitation involves direct in-person, live telephone, or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
In the context of autodialed recorded telephone advertising, the Ethics Committee opined in 2006 FEO 17 that,
[A]lthough it appears that recorded telephone advertising messages are permitted by the Rules of Professional Conduct, Rule 7.3(a) and the comment to the rule do not contemplate that a recorded message will lead to an interpersonal encounter with a lawyer (or the lawyer’s agent) at the push of a button on the telephone key pad. To avoid the risks of undue influence, intimidation, and over-reaching, a potential client must be given an opportunity to contemplate the information about legal services received in a recorded telephone solicitation. This cannot occur if a brief, unexpected, and unsolicited telephone call leads to an in-person encounter with a lawyer, even if the recipient of the phone call must choose to push a number to be connected with the lawyer.
However, in 2006 FEO 17, the legal advertisement at issue was an unsolicited communication about a lawyer’s services and required an immediate response from the potential client.
2011 FEO 8 addresses utilizing live chat support service on law firm websites. The opinion concludes that lawyers may use a live chat support service on the lawyer’s website even though a live chat communication constitutes a real-time electronic contact. In the opinion, the website visitor made the initial contact with the firm. Similar to the ABC Texting service, the website visitor described in 2011 FEO 8 chose to visit the law firm’s website and has the ability to ignore the live chat button or to indicate with a click that he or she wishes to participate in a live chat session.
In the instant scenario, the subscriber voluntarily registered with ABC Texting expecting to receive various advertisements from various service providers, including lawyers. In addition, the subscriber is given the opportunity to accept or decline Lawyer’s offer to contact the subscriber. “It is important to note that the prohibition in Rule 7.3(a) applies only to lawyer-initiated contact. Rule 7.3 does not prohibit real-time electronic contact that is initiated by a potential client.” 2001 FEO 8. The potential for abuse that Rule 7.3 is intended to guard against is not present. Therefore, because the subscriber consents to a phone call, Lawyer may call subscriber and offer legal services.
Does the answer to Inquiry #2 change if the second text message from ABC Texting includes Lawyer’s phone number and an invitation to call Lawyer?
1. The assumption in this inquiry is that this is not a targeted communication to someone known to be in need of legal services in a particular matter. Such communications must comply with Rule 7.3(c).