In October 2024, the Pennsylvania Supreme Court adopted a series of amendments to the Rules of Professional Conduct for legal services communications. The new rule changes, which went into effect on November 14, 2024, are part of an effort to update the attorney advertising rules, which many believed were outdated and unworkable.
Among the many changes that recently went into effect is the addition of new commentary to Rule 7.3(b), which explains that the prohibition of “live person-to-person contact” to solicit work includes text messaging.
Rule 7.3(b) prohibits a lawyer from soliciting professional employment by live person-to-person contact except in a few enumerated circumstances. “Live person-to-person contact” is defined in comment [2] to the Rule 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.” The new comment further specifies, “[s]uch person-to-person contact includes text messages.”
The prohibition of text message solicitation was an unexpected change to the new rules. The inclusion of texting in the definition of “person-to-person contact” was not part of the amendment initially proposed by the Pennsylvania Disciplinary Board. The version of the rule published for public comment in February 2021 specifically stated that text messaging was not prohibited. Moreover, the ABA Model Rules of Professional Conduct—which the new Pennsylvania Rules were intended to mirror—permit text messaging. The ABA Model Rules exclude text messages from the definition of “person-to-person contact” on the basis that they are written communications recipients can easily disregard.
A Pittsburgh-based legal marketing company, Text Ads and Marketing, LLC, has already filed suit, alleging the change to Rule 7.3(b) prohibiting text message solicitation violates First Amendment protections for commercial speech. Text Ads asserts that texts should not be considered “person-to-person contact” because recipients can easily opt to read them at a later time or simply ignore them. The lawsuit will be closely monitored for the impact it may have on the future of attorney advertising in Pennsylvania.
