Geofencing: Ambulance Chasing for the Tech Savvy Law Firm?

There are ethical limits on how attorneys can generate new business. These rules of professional conduct change slowly while the pace of technology development speeds ahead. There is one technique used for digital advertising, geofencing, which could result in attorney advertising being played on the smartphones of potential clients at times of great stress, which presents both a potential marketing gold mine and an ethical minefield that should be avoided. Geofencing is a location-based service in which an app or other software uses the global positioning system (GPS), Wi-Fi or cellular data to start an action when a mobile device enters or exits a virtual boundary set up around a geographical location. It could result in mobile push notifications, text messages or alerts and targeted advertisements on social media.

How would geofencing impact people?

Examples of geofencing include,

• A business can set up geofences around their competition. When you approach it you’ll receive a push notification informing you of a sale or other promotion to encourage you to stay away.
• If you’re in a retail store a coupon could be pushed to your smartphone.
• An app from a grocery store may show an alert, trying to get you to stop in, if you’re passing by.

This type of marketing approach could also be used by law firms.

• A hospital could be geofenced so ads from a personal injury or medical malpractice attorney could appear on social media on smartphones used by those inside it.
• Intersections, areas of highways or local roads well known for accidents could be geofenced, so if someone involved in an accident uses a smartphone, an ad from an attorney may appear.
• A large construction site or workplace with a bad reputation for workplace accidents could be geofenced for ads from a workers compensation attorney.
• Ports and railway yards could be geofenced and subjected to ads from attorneys who work with injured railroad workers and those working in the maritime industry.
• Jails, courthouses and police stations might be geofenced so those doing internet searches seeking information about criminal defense law could receive ads from attorneys.
• Border areas, airports and Immigration and Customs Enforcement facilities could be geofenced so immigration attorneys could create awareness among potential clients.

It’s not quite “anything goes” for this new marketing frontier, according to CIO magazine. It reports that in 2016 Massachusetts enacted a consumer protection law limiting the use of location-based advertising. The Commonwealth’s Attorney General blocked an ad campaign by a Christian organization setting up a geofence around women’s health clinics that would target those inside and nearby with anti-abortion ads. Those finding themselves subjected to ads from lawyers at times and in places where they feel stressed and under pressure may also feel targeted and taken advantage of by attorneys so this type of advertising campaign could backfire.

What are the ethical issues concerning geofencing?

Many, but not all, states have banned "runners" or non-attorneys soliciting clients in person at accident scenes or hospitals for attorneys. New York rules of professional conduct prohibit direct, unsolicited communication with an injured individual or their family members within thirty days of an accident, according to an Albany Times Union commentary. The rules of professional conduct vary from state to state. Pennsylvania’s Rule 7.3, Solicitation of Clients, states in part, (b)  A lawyer may contact, or send a written communication to, the target of the solicitation for the purpose of obtaining professional employment unless: (1)  the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer… (3)  the communication involves coercion, duress, or harassment… If this type of ad is considered a “communication” an attorney using geofencing, depending on the facts of the situation, could be accused of violating this rule of professional conduct.

• If the area in question is a hospital, dangerous intersection, jail or courthouse, that lawyer knows, or should reasonably know, the physical, emotional or mental state of a person in that type of location would be under stress and may not be able to exercise reasonable judgment in employing a lawyer.
• Depending on the advertising and its frequency, it may also be considered harassment, especially given the fact the person is in an especially vulnerable situation.

Rule 7.1 essentially states attorney communications must be truthful and not misleading, and Rule 7.2, which covers advertising, states nothing relevant to this issue, which is the problem. This type of advertising/communication is new and the repercussions are just starting to be considered.

Why is geofencing unethical attorney communication?

The ads or other content, on their face, aren’t the problem. It’s the fact they’re being delivered at a time and place in which people are not in the right frame of mind to juggle all the factual and legal issues in front of them and make sound decisions on legal representation. Geofencing has become the high tech, online runner which has been made illegal in many states. Attorney advertising and marketing material generally are aimed at those suffering any number of problems and who are under stress. But geofencing’s ability to target prospects in the time and place where they are most vulnerable steps over the line. Although this approach may result in more clients for some firms, it doesn’t serve the legal profession well. Attorneys can advertise, but as the rules of professional conduct spell out, there can and must be limits on it. There are any number of unethical ways a law firm can build up its business, but they’re not allowed and geofencing should be added to the list. Edward Lott, Ph.D., M.B.A. President and Managing Partner ForLawFirmsOnly Marketing, Inc. Ed can be reached at (or visit his website) edl@forlawfirmsonly.com 855-943-8736 ext. 101 www.ForLawFirmsOnly.com

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