IN-PERSON SOLICITATION: NEW VIRGINIA RULE AND EVOLVING NATIONAL TRENDS protected from even truthful marketing, or does the government believe that consumers are smart enough to make informed hiring decisions as long as they are not deceived by “false or mis-leading” marketing? The national debate about in-person solici-tation also involves another fascinating issue, which our entire society confronts. How “intru-sive” are forms of electronic communication, which increasingly make up the bulk of our interpersonal communications? As folks began to use the internet in the early to mid-1990s, bars found it necessary to analyze whether law firm websites were so intrusive as to constitute in-person solicitation. See, e.g. , Pennsylvania LEO 96-17, 1996 WL 928126, at *2 (5/3/96) (“It is my opinion that advertising on the Internet via a web site does not constitute in-person solicitation as prohibited under Rule 7.3(a).”). This analysis seems almost silly now, but bars seriously wrestled with this early form of electronic marketing — which seemed to jump off the computer screen. At about the same time, bars dealt with e-mails. At the dawn of the electronic age, e-mails seemed more intrusive than envelopes delivered to a mailbox. But were e-mails so intrusive that they deserved to be governed by the much more restrictive in-person solicitation rules? At least one bar seemed to conclude that they were. Tennessee LEO 95-A-570 (5/17/95) (not for pub-lication). However, bars everywhere ultimately concluded that e-mails should be considered “direct mail”— landing somewhere between a magazine advertisement and a face-to-face visit. More recently, bars have had to deal with text messages. For many of us, those seem much more intrusive than e-mails, mostly because we usually text with a fewer number of family members and friends. In 2013, the Ohio Bar concluded that “a standard text message is more akin to an e-mail than a chat room communication.” Ohio LEO 2013-2 (4/5/13). But before you praise the Ohio Bar’s forward thinking, you should note that in the same opin-ion approving lawyers’ marketing through texts, the Ohio Bar required all such texts to include: (1) the name and address of the “responsible lawyer or law firm” sending the text; (2) the fol-lowing language in all caps, if the lawyer “has a reasonable belief that the prospective client is in need of legal services in a particular matter: “ADVERTISING MATERIAL” or “ADVERTIS-MENT ONLY” at “BOTH THE BEGINNING AND ENDING OF THE MESSAGE.”; (3) an explanation of “how the lawyer learned of the need for legal services,” under those circum-stances; (4) the following language, incorporated into the “Understanding Your Right” statement of Ohio Prof.Cond.R. 7.3, if the lawyer sends the text “to prospective clients or relatives of prospective clients within ‘thirty days of an accident or disas-ter that gives rise to a potential claim for personal www.vsb.org 18 VIRGINIA LAWYER | August 2014 | Vol. 63 | ETHICS