Sending unsolicited electronic newsletters is bad legal marketing in my opinion. There, I’ve said it. Even with an opt-out provision. Invitations on your web site, or an extremely brief e-mail invitation to sign up (but even then there should be a quick, one-step opt-out procedure to avoid receiving future e-mail “invitations”), may be okay. But, sending e-newsletters, not specifically requested, is nothing but spam. Others may find that even a brief e-mail soliciting an opt-in process is spam, but I’ll leave that to the critics. The question here is whether unsolicited law firm e-newsletters will or should be barred by law or bar rules.
An article by Anthony Lin in the New York Law Journal and reprinted on Law.com tells of the lawyer who sent unsolicited faxes to other lawyers. The communications were in the form of law advisories on legal malpractice issues. A federal judge held the actions violated the Telephone Consumer Protection Act of 1991 because they were “unsolicited advertisements,” even though the lawyer argued the “advisories” were only intended “to educate and inform the legal community about legal malpractice issues,” and did not tout his capabilities in the field. According to Lin, the judge didn’t buy that argument and found that they “indirectly highlight… (the lawyer’s) availability to represent clients in such matters.”
That got me to thinking about whether e-newsletters are really advertisements and not just intended for educational purposes. I think we all know the answer to that one. The TCPA does not explicitly cover e-mail “advertisements,” even though there are those who wish it did, and think that it is not beyond the realm of possibility that the FCC could “construe (emails) to be faxes,” in which case it could be a different ball game.
But, back to the issue. Should/could/will unsolicited e-newsletters be barred as spam/junk/unsolicited advertisements? Any one care to chime in?