New Jersey Opinion 46 Addresses Geo-Fencing
Lawyers have discovered the electronic marketing techniques referred to as geo-fencing or geo-targeting and have inquired about the propriety of their use in attorney advertising. The New Jersey Committee on Attorney Advertising has recently responded in Opinion 46 with guidance that permits geo-fencing with specific limitations.
A bit of explanation…Smart phones and other digital devices transmit location data that enables a marketing company to digitally target the device and direct specific advertising to appear adjacent to a website that the user is viewing or otherwise “pop up” on the device.
Geo-fencing refers to the process whereby an advertising company constructs a digital (invisible) fence around a specific geographical area in which advertising will appear. When an individual enters the area around which a fence has been erected—for example a hospital—specific marketing—let’s say for a personal injury lawyer–will appear on the person’s phone when the person accesses any website on the phone. So, if someone is injured, a personal injury lawyer’s advertisement is readily available.
Geo-targeting involves sending advertising to smart phones and similar devices based upon the user’s IP address (the unique number assigned to each of our devices). These advertising companies can sort the recipients by age, gender, and income.
Of course, the advertising only reaches the attended audience if a user’s device transmits location information and the user browses the internet while in a fenced location. If the advertising does reach intended recipients and some of them contact the lawyer, then “voila”; perhaps another digital age advertising success story.
So, what’s the legal ethics issues for lawyers to consider before building fences? The issues are found in the attorney advertising rules, specifically the prohibitions against inappropriate solicitation found in New Jersey’s Rule 7.3, which is similar to the solicitation rule found in most states.
The New Jersey Committee on Attorney Advertising (“Committee) focused its analysis on three sections of Rule 7.3 that are designed to protect the public from overbearing advertising when the individuals targeted may be in a vulnerable state and therefore unable to use reasonable judgment in retaining a lawyer.
Rule 7.3(b)(1) prohibits direct contact, electronic or otherwise, with individuals that the lawyer knows or should reasonable know are in a physical, emotional, or mental state that would impact their judgment. Rule 7.3(b)(4) prohibits “unsolicited direct contact with a prospective client within 30 days after a specific mass-disaster event, when such contact concerns potential compensation arising from the event.” Rule 7.3 (b)(5) extends (b)(4) to other specific events, but allows a letter to be sent by regular mail.
The Committee appreciated the potential value of geo-marketing for lawyers, but noted that some of the obvious locations that lawyers may want to “fence” includes places in which a lawyer “knows or should reasonably know” that the marketing would target the vulnerable individuals that Rule 7.3 is designed to protect. The Committee identified some of these locations to be emergency rooms, urgent care centers, hospitals, funeral homes, police stations, courthouses, and accident sites. The Committee concluded that geo-marketing in these areas would violate Rule 7.3 (b)(1)Similarly, the Committee advised that geo-marketing to victims of a mass disaster would violate Rule 7.3(b)(4).
However, interestingly, as to the other “specific events” addressed in Rule 7.3(b)(5), the Committee distinguished between advertising that appears adjacent to a website that the user is browsing as opposed to advertising that “pops up” and interferes with an individual’s browsing by requiring the user to watch the advertisement before entering the chosen website. The Committee found pop-up advertising to be tantamount to impermissible direct contact, but adjacent advertising to be permissible as secondary to a chosen website in a manner that does not require the user to read or view it.
Take away?
We have come a long way from debating whether attorneys can use texting to advertise. (See our prior post here.) And… Geo-marketing may be advertising worth exploring, but only with insight, guidance, and caution. Be careful when constructing electronic fences!
