In the good old days, plaintiff lawyers hoping to find a few new clients would place ads on billboards located near hospitals. From an ethical perspective, as long as these lawyers followed through with their obligations set forth in the advertising rules of their respective jurisdiction’s Rules of Professional Conduct (RPCs), it was all good. How times have changed. Nowadays lawyers can use location-based advertising to target potential new clients with laser-like focus.
For example, suppose a law firm decides to work with a marketing company that can use global positioning (GPS) information to define a geographic boundary. Once the law firm defines its desired “virtual barrier,” the marketing company will then set up triggers that send a text message, email alert, or app notification when a mobile device enters (or exits) the specified geographic area. This process is called geo-fencing and it can be quite effective as a marketing tool.
There are various location-based technologies in use today that allow businesses of all sorts to establish very defined virtual perimeters, thus creating all kinds of marketing possibilities. So now instead of having to rely on a billboard campaign, plaintiff lawyers can build virtual fences around local hospitals or local emergency rooms and target market to everyone entering or exiting those spaces. In light of the amount of time the average person spends on a mobile device each and every day, the opportunities with geo-fencing marketing campaigns seem compelling.
For lawyers, the interesting question is this: Is the use of geo-fencing in a targeted marketing campaign ethically permissible? The temptation is to immediately say no, if for no other reason than it just doesn’t seem right. It seems invasive, and I suspect more than a few of us would tend to label this an impermissible solicitation. But is it?
While I can’t provide a definitive answer, particularly given the reality that the RPCs differ from state to state, I can share a few thoughts. At the outset, there is nothing in the advertising rules that specifically prohibits the use of location-based technologies as long as these tools are used in compliance with the obligations set forth in the advertising rules. There can be no false or misleading statements made, you will be responsible for seeing that the acts of the advertising service on your behalf comply with the RPCs, etc.
But again, if a lawyer were to use geo-fencing to target market to a very defined group of persons as described above, is he or she soliciting employment in violation of the RPCs? I have a hard time saying yes he or she would be, and here’s why. A solicitation is generally defined as a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows, or reasonably should know, that needs legal services. With that understanding, I fail to see how ads exclusively directed toward individuals entering an emergency room can be deemed to be a solicitation because they are directed toward everyone entering that space, to include hospital staff, vendors, and patients of all types, many of whom are there for reasons other than to have an injury treated. In this example, geo-fencing is still being used to direct communications toward the general public as opposed to a specific person, or even a specific group of persons, known to be in need of legal services.
With this said, please understand I’m not trying to suggest a law firm’s use of location-based advertising technologies for a targeted marketing campaign is a great idea. It may not even be a good idea. Speaking personally, I’m one that doesn’t like the invasive feel of targeted marketing, particularly at this level. All I can say is if you ever decide to go down this path, be smart about it. Oh, and make sure you thoroughly read and understand the advertising rules in your jurisdiction. Just because I think geo-fencing would likely pass ethical muster doesn’t make it so in the jurisdiction in which you practice.