Does a Lawyer Who Targets Ads with Geofencing Make Impermissible Contacts with Prospective Clients?

When a lawyer sends a targeted, unsolicited written communication to a prospective client whom the lawyer knows to need legal services in a particular matter, the lawyer’s communication must prominently display the disclaimer “ADVERTISEMENT.” See ABA Model Rule of Prof’l Cond. R. 7.3(c); La. Rules of Prof’l Cond. R. 7.4(b)(2). In contrast, a nontargeted advertisement that a lawyer widely broadcasts to prospective clients using radio, television, or print media need not display such a disclaimer. Thus, if a lawyer were to place advertising leaflets on the windshields of all the cars in a neighborhood, the lawyer would not have to disclaim them as “ADVERTISEMENTS.” But if the lawyer were to mail the same leaflet to an accident victim at a hospital, the lawyer would have to use the disclaimer. Furthermore, in Louisiana, a lawyer may not send an “unsolicited” written communication to a prospective client within 30 days of an accident or when the prospective client is in such a “physical, emotional, or mental state” that the person’s ability to “exercise reasonable judgment” is impaired. See La. Rules of Prof’l Cond. R. 7.4(b)(1).

Are these advertising rules implicated when a lawyer uses geofenced or location-targeted Internet ads? For example, one legal marketing service asks lawyers to “[i]magine placing ads to potential personal injury clients as they enter and after leave a hospital, auto body shop or chiropractor; for criminal lawyers, how about a police station, bail bonds or court house.” See Real Legal Marketing, GeoFencing for Lawyers (at Google allows advertisers to “target a radius around a location” and thereafter serves up advertisements in response to certain Google searches conducted near that location. Does a lawyer who uses these location-based advertising techniques violate the professional conduct standards regulating advertisements for legal services?

No. Although, such geofenced advertisements are delivered to Google searchers who may be likely to need legal services given the content of their search queries and their location, the ads are not delivered to persons known to need legal services. Furthermore, such advertisements do not involve “coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence”—they are virtually indistinguishable from thousands of similar ads that routinely appear in response to Google searches. Finally, given that Google serves up such advertisements in response to queries seeking a “lawyer” or “attorney,” the targeted advertisements are actually ones that have been “solicited” by the prospective clients, not ones that are “unsolicited.”

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