October 19, 2015

Could Florida lawyers be sued for soliciting clients with text messages?

In an ironic twist, a newly approved method for soliciting clients could have Florida law firms facing lawsuits of their own.

The Florida Bar Association recently lifted a ban on firms sending business solicitations to potential clients through text messages. Previously, sending texts to prospective clients was seen as too personal and thus barred under FBA “ambulance chasing” rules. Now the organization has adopted the view that texts are more like emails.

But before the law firms start texting away like teenagers, they might want to consider that these communications could be seen as violations of the Telephone Consumer Protection Act (TCPA). This would be the ultimate irony, as the TCPA is a law that a growing number of plaintiffs’ lawyers have used to sue all sorts of businesses.

The TCPA was designed to stop unwanted telemarketing phone calls that were harassing people during the dinner hour in the early 1990s. The law imposed stiff fines of up to $1,500 for each violation of the law. In addition to landlines, the TCPA regulated a new device called a cell phone. This was, of course, before smart phones existed and the first text message would not be sent for another year.

But technology changed how we communicate, and opened the door for abusive lawsuits like the recent one against the Los Angeles Lakers. During games, the Lakers asked fans to choose their favorite song to be played by texting their vote. The fans who voted received a thank you text in return. Plaintiffs’ lawyers claimed that this is a violation of the TCPA statute as the individuals did not provide prior consent to receiving that thank you text. The case settled for millions.

Earlier this year, the Federal Communications Commission (FCC) issued a ruling that allowed plaintiffs’ lawyers to continue bringing unwarranted TCPA lawsuits.

Which brings us back to those Florida plaintiffs’ lawyers. The Florida Bar Association’s rule change on solicitation texts seems to open the door for the very same violations over which some plaintiffs’ lawyers are suing businesses.

If law firms plan to identify potential clients by rifling through court documents and traffic ticket databases, then sending text messages, without prior consent, to these individuals in an attempt to obtain their business . . . sounds like it could be a TCPA violation to us.

If businesses have been subject to TCPA violations for communications to their customers (like prescription notices, account updates, and even “thank you” texts), will the law firms be facing TCPA litigation of their own for these unsolicited messages? In fact, some might say that ambulance chaser texts soliciting business from unknown individuals are more line in with the telemarketing the TCPA seeks to protect consumers from.

If the Florida Bar Association’s new rules make some if its members angry over lawsuits, it wouldn’t be the first time that plaintiffs’ lawyers have had a problem with the supposed TCPA violations. The American Association for Justice (AAJ), the plaintiff’s lawyer lobbying group, was sued in 2014 by some of its own members for violating the TCPA’s blast fax regulations.

Time will tell if the Florida law firms face suits of their own for TCPA infringements, but if they do, we can be sure that they won’t like the taste of their own medicine.

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