Florida: Text Messages are Direct Solicitation

Oh, Florida.

Let me get this out of the way first: I don’t think lawyers soliciting clients via text message is very effective. It probably comes across as amateurish and cheesy. And if a law firm isn’t very, very careful, text solicitation risks running afoul of the well-intentioned-but-stinking-turd of a regulation that is the Telephone Consumer Protection Act.

Which is a very bad thing indeed.

But text messages are direct solicitation? The direct solicitation that can only constitutionally be prohibited if it rises to the level of intrusiveness and undue influence found in a personal interaction with a trained advocate?

That’s what the Florida Standing Committee on Advertising decided,  voting 6-1 to treat text messages as prohibited direct solicitation. In so doing, the Committee had a series of amusing exchanges about the relative use cases for text messages and mobile phones, but apparently did not consider – at all – the constitutional issues involved.

I mean, it’s not like the Supreme Court hasn’t weighed in on the acceptable contours of prohibiting attorney solicitation on four separate occasions, the last of which involved a Florida regulation.

I haven’t got any great interest in seeing solicitation-via-text. But is it too much to expect that bar regulators look to the constitutional limits on their authority, rather than acting like they regulate in a vacuum?

Update 9/10/15:

The board of bar governors in Florida has reversed the Ad Committee, clearing the way for attorneys to solicit via text messages . . . as long as Florida’s cumbersome attorney advertising rules are complied with.

Yay for a Bar paying attention to the first amendment!

But just because it’s allowed doesn’t mean it’s a good idea. And unless you’ve got a very clear bead on 1) your ROI and 2) how you’re going to navigate TCPA compliance, marketing via unsolicited text messages is a horrible idea.