As the world becomes increasingly digital, lawyers must adapt their practices to fit the changing cyber landscape. New trends in social media advertising are trickling down into the legal profession. Personal injury attorneys no longer have to chase ambulances or wait for clients to come to them with a case. Instead, firms are employing marketing companies to install “geo fences” to attract clients around hospitals, clinics, and doctor’s offices.
Geo-fencing involves placing a “virtual fence” around the perimeter of a geographical area. After the fence is “installed,” advertisers can identify a person’s “phone ID” from WiFi, cell data, or an application using GPS location services as soon as someone steps over the digital fence. This allows advertisers, such as law firms, to send push notifications advertising their services directly to potential clients. These ads can show up on multiple devices and through different mediums, such as social media, text messaging, and web browsers.
Bill Kakis of Tell All Digital, a marketing firm in Long Island, NY recently told WHYY that personal injury law firms and hospitals in Philadelphia have already signed on with his firm to employ this new technology. WHYY’s requests for comment were not returned when it reached out to Philadelphia-area law firms to see if they were using this technology.
An attorney looking for clients may say: so what? The legal profession must change and adapt to new technology and this is a way to capture potential clients by advertising their services to them directly. However, there are serious concerns related to consumer privacy and the legality of this kind of legal advertising.
In Pennsylvania, the Rules of Professional Conduct do not allow attorneys to solicit clients directly, with some exceptions. See Rule 7.3 of the Pa. Rules of Professional Conduct. However, a lawyer may contact a person to obtain professional employment unless “…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.” See Rule 7.3(b)(1).
Are geo-fencing advertisements ethical? If an attorney waited outside an emergency room and passed out business cards to strangers entering and exiting the hospital, most attorneys would agree that this type of solicitation is unethical. The question is: how is geo-fencing different? It certainly feels like the digital equivalent of passing out a business card to vulnerable injured persons. However, if the advertisement is pushed out to every person with a smart phone that passes the geo-fence, the ad may be considered a solicitation to the general public, just like a billboard, website, or TV commercial. A solicitation to the general public is expressly allowed by the Rules and may be akin to an Internet banner or website advertisement.
Moreover, this type of advertising raises additional issues. HIPAA does not apply to location-based mobile ads, as it is only directed at particular health care industry actors, like hospitals, clinics, doctors, and insurance companies. Lawmakers may need to reconsider who HIPPA applies to and make adjustments if this kind of advertising becomes the norm.
Regardless of potential HIPPA violations, people may feel uncomfortable receiving these geo-targeted advertisements when they are at their most vulnerable. Although most people are aware that carrying a smartphone essentially allows a user to be “tracked,” the conversation changes when the type of information being shared with an attorney’s office relates to a person’s medical history.