The Text-Message Crash Campaign

The campaign has several problems. Colo. RPC 7.1 prohibits false or misleading communications about a lawyer’s services. “You may be entitled to $100,000” is misleading if it implies a guaranteed or typical outcome. “Has won 97% of cases” is a statistical claim that must be objectively verifiable and not presented in a way that creates an unjustified expectation. “The best results in Colorado” is a comparative claim that is difficult to substantiate and likely misleading.

Colo. RPC 7.3 restricts solicitation. Colorado generally prohibits in-person, live telephone, and real-time electronic solicitation of prospective clients with whom the lawyer has no prior relationship, unless the person is a lawyer or the solicitation is otherwise permitted. A targeted text message sent within 24 hours of a crash is a real-time electronic solicitation. The fact that the names came from a public crash report does not create a prior relationship or consent. Sending to a 17-year-old compounds the problem because minors are especially vulnerable and the communication may be directed to a person who cannot enter a fee agreement.

Colo. RPC 8.4(c) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. The unsubstantiated certification, the 97% claim, and the “best results” claim can support a 8.4(c) violation if they are knowingly false or recklessly made.

The $300 payment is a referral fee to a nonlawyer and is prohibited. Colo. RPC 5.4(a) prohibits a lawyer from sharing legal fees with a nonlawyer except in limited circumstances not present here, such as death benefits or certain nonprofit arrangements. Colo. RPC 7.2(b) prohibits giving anything of value to a person for recommending the lawyer’s services, with limited exceptions for nominal gifts and permitted advertising. Paying $300 for each signed client is a direct payment for referral. The firm cannot cure it by calling LeadGen a “marketing consultant” or by having LeadGen send the texts.

LeadGen’s drafting of the text messages also raises Colo. RPC 5.3 responsibilities. A lawyer must make reasonable efforts to ensure that a nonlawyer’s conduct is compatible with the lawyer’s professional obligations. Because LeadGen is not a lawyer, it cannot make legal judgments about solicitation, misleading claims, or whether a recipient is a minor. The firm remains responsible for the content. The arrangement should be terminated, the fee-sharing stopped, and the campaign reviewed and corrected. Continuing the payment structure risks discipline for both the firm and the lawyers who approved it.

Likely rule violations include Colo. RPC 7.1 (misleading claims), 7.2(b) (payment for referral), 7.3 (improper solicitation), 5.4(a) (fee sharing with a nonlawyer), 5.3 (failure to supervise a nonlawyer), and possibly 8.4(c) (misrepresentation). Discipline could range from a public censure to suspension, depending on whether the misconduct was knowing, how many recipients were contacted, and whether the firm cooperated. The 17-year-old recipient is an aggravating fact because of vulnerability and the likelihood that the solicitation was misleading to a minor.

The firm should immediately stop the text campaign, terminate the LeadGen arrangement, and stop accepting referrals under the $300 agreement. It should preserve all records of the campaign and the LeadGen contract. It should remove or substantiate the “Board-Certified” claim, the 97% claim, and the “best results” claim. If the certification is not accredited, the firm should not imply that it is a recognized specialization. The website testimonials need disclaimers if they could create unjustified expectations, and the firm should review them for accuracy. The firm should also consider self-reporting and cooperating with OARC; early remediation and restitution may mitigate discipline but do not erase the violations.