ABA Law Practice Today — For PA Lawyers, Remember Sexting is Sex; Texting can be Improper Solicitation

In once again serving as the issue editor for the Ethics-themed December 2024 edition of the American Bar Association’s Law Practice Today webzine, I contributed an article addressing recent changes to the Rules of Professional Conduct in Pennsylvania, and related ethics opinions, addressing texting in two different ways—ways where texting can be improper solicitation, and a whole different definition of “solicitation”—as it relates to sexting. In the article headline I submitted, “For PA Lawyers, Remember Sexting is Sex; Texting can be Improper Solicitation,” I may or may not have made it more salacious to increase readership and interest (i.e. click bait). But our copy editors did edit my title to the official “Can Texting Be Improper Solicitation?”

Many thanks to the authors contributing excellent articles to the Ethics issue. Michele Carney wrote on Formal Opinion 512 and The Reasonableness of Fees When Using AI. Dave Ries once again tackled a cybersecurity ethics issue with Ethically Avoiding Fraud and Scams. Law Practice Division chair-elect Dan Siegel authored Generative AI Competence. And Charity Anastasio wrote on Lesser Known but Wildly Helpful Ethics Rules. All of us—myself, Dave, Dan, Michele and Charity—are active members of the ABA LP Ethics & Professionalism Committee.

If you are blocked from reading the article behind the ABA paywall, it is provided below in its entirety.

Can Texting Be Improper Solicitation?

Summary

• Revisions to the Pennsylvania Rules of Professional Conduct (RPC) address issues related to “sexting” and the use of texting for client solicitation.
• Pennsylvania interprets texting as falling under “in-person, face-to-face, live telephone, and other real-time visual or auditory person-to-person communications.”
• Whether texting qualifies as real-time communication is subjective, but safeguards and regulations for its use in engaging prospective clients could be implemented.

 

Recent changes and comments to the Rules of Professional Conduct (RPC) in Pennsylvania address a form of communication that many of us depend on daily yet was not on the legal ethics radar until recently: texting. And when I’m talking about sexting and solicitation, let’s just say it is not the old-school definition of that convergence.

Pennsylvania finally implemented some long overdue changes and “edits” to the RPC for lawyer marketing, advertising, and solicitation — it was done with little fanfare. I had wondered what became of the proposed changes put forth in 2021, only to stumble across the announcement in October, taking effect November 14, 2024. As is often the case, you can expect other states to look at these changes — some will follow suit, while others will interpret (and enforce) things much differently.

Pennsylvania RPC 7.3(b) now provides: “A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a: (1) lawyer; or (2) person who has a family, close personal, or prior professional relationship with the lawyer or law firm.” Comment 2 defines “live person-to-person contact” as “in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact includes text messages.”

Don’t Engage in Sexting with Clients

But let’s start with another change to RPC 1.8(j), the rule barring lawyers from having sexual relations with a client unless their sexual relationship predates their professional one. The new language explains that “‘Sexual Relations’ includes, but is not limited to, communications of a sexual nature” (emphasis added). It harks back to Bill Clinton’s deposition in the Paula Jones case.

It also reminded me of George Costanza’s response in a favorite scene from “Seinfeld” when he is asked about having sexual relations with the cleaning woman on the desk in his office: “Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon, you know, because I’ve worked in a lot of offices, and I tell you, people do that all the time.”

Let’s just say that if I engaged in sexting with a client, the Disciplinary Board of the Supreme Court of Pennsylvania would likely be among the least of my problems. I’m not sure citing my interpretation of the RPC at home would carry much weight. I won’t dare ask the state supreme court to analyze this using TikTok as opposed to direct cell phone communication.

Besides knowing that discussing sexting — rather than just nuanced interpretations of texting for purposes of lawyer marketing — would generate clickbait for Law Practice Today, both point to the continued subjective interpretation of either example. If sexting is sex, what is texting when used for solicitation and communication with clients and prospective clients? Is it lawyer advertising? Is it solicitation? Is it a little bit of both?

Where Does Texting Fall in the Law Marketing Landscape?

If you start with the premise that attorney advertising is commercial speech protected by the First Amendment (Bates v. State Bar of Arizona, 433 U.S. 350 (1977)), then determine whether you can have an outright ban on direct mail (Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988)), then mix in solicitation restrictions (Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)), and toss in the advent of the internet and all that came with it, including email, listservs, chat rooms, social media, and texting, you are then faced with evaluating which of those turn out to be more akin to a phone call, in-person meeting, and varying interpretations as to what is and is not “live” or “real-time visual or auditory person-to-person communications.”

A recent “discussion” on a legal ethics listserv among professional responsibility attorneys who work on these types of matters every day showed a real lack of consensus and agreement as to where even email use stood regarding solicitation rules. While email started in the ’70s, let’s just say that it did not become mainstream until the ’90s — which still does not explain a lack of clarity after a quarter century or so.

Even little old-time communication methods like the U.S. Postal Service are not always straightforward. Beyond various state bar requirements surrounding advertising disclaimers, font sizes, and related regulations, you might not know that Missouri RPC 4-7.3 (Direct Contact with Prospective Clients) differentiates between written solicitations mailed to prospective clients by regular U.S. mail (OK), versus priority mail or registered, certified, and I would assume UPS or FedEx (not OK).

For many years, in my ethics practice, I did not pay much attention to many of the issues revolving around RPC 7.3 and solicitation of clients. Even when the ABA issued Formal Opinion 501 in 2022, I scoffed. My own opinion is that it simply highlighted the obvious. I thought I knew what “live person-to-person contact” meant. I also fully understood that a lawyer and law firm were responsible for the supervision and conduct of those they employed, retained, or were associated with — be it marketing staff, outside vendors, or something that looks a lot like a “runner.” I knew it was typically OK to reach out to another lawyer, a current or past client, or a family member or friend. I did not think too much about the specific method of communication.

Just as many of these rules related to solicitation are grossly outdated — nobody waits for the 30-day cooling off period to “lawyer up” when in need of counsel following a disaster. Regardless, you are less likely to use direct mail anyway. The communication method is most likely going to be via social media channels and other digital means — including texting.

Law firms have long used texting as a means of communication. With clients, it might be to provide updates on cases. It is heavily used in the class action space to keep people abreast of progress. Many law firms text clients an easy link to leave online reviews for Google, Yelp, and other platforms. Many lawyers offer up the “text me” as part of more traditional advertising on billboards, buses, and commercials. But what about unsolicited text advertising?

Is Texting for Clients Real-Time Communication?

Is Pennsylvania’s interpretation of texting as falling under the category of “in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection” a correct one?

Is it more akin to a phone call — which I acknowledge is a no-no — or an email — which is not? We are all recipients of many, many unwanted and unsolicited text messages on our phones every day. Do you hit “delete” any differently on those than you would hit “delete” on an unwanted email? Dare I ask if it might be like the difference between a piece of mail that you would just toss out or something that looks more urgent or important because it comes via priority mail? Again, much of this is subjective. And as we all know too well, the makeup of these deciding bar committees may not be a “jury of your peers” but perhaps a more senior group of folks who might use texting a whole lot differently than another demographic. I don’t agree with the Pennsylvania interpretation, but I could see the need to provide some safeguards and regulations around use. If the text is advertising (it is), do you allow for an easy opt-out for future communications? Do you have an “attorney advertisement” disclaimer, or links to other related language? Are you treating it the same as any other lawyer marketing approach (you should)? My opinion is that it is not real-time. But I also can see states making sure that it all complies with the myriad of other attorney advertising requirements that might be in place.

So, Sue Me!

Before the new RPC rules kicked in last month, a Pittsburgh, Pennsylvania-based legal marketing company, Text Ads, did just that. In Text Ads & Marketing, LLC v. Rafferty, the company sued members of the Disciplinary Board of the Supreme Court of Pennsylvania in federal court, alleging a First Amendment violation by barring the use of text messages to solicit clients.

The suit noted, among other things, that this rule and comment change magically appeared without requesting comments or publishing the proposed amendment. It would not be the first time a law marketing company suggested that a rule change (or in many cases, an ethics opinion) was targeted directly toward them. It noted that this rule change flipped the ability to contact criminal defendants — a product they seemed to have success selling, because they were having success using text as a conversion tool. They also noted that they adhere to the Telephone Consumer Protection Act (TCPA), which is critically important to anyone using text for business purposes.

Was the purported success of Text Ads in Pennsylvania the real issue — as many attorneys continue to grapple with what is and is not an acceptable code of conduct and professionalism as we approach a half century after Bates? At the time of this writing, a federal judge declined to halt the text prohibition. State bars often lose these challenges.

In the meantime, think before you text — and make sure you’ve adhered to the rules of the road (never text when driving), literally and figuratively.