United States: Are Those Ads That Follow You Everywhere You Go On-Line Ethical? City Bar Ethics Opinion Says Yes

It wasn't long ago when consumers browsing the Internet would be astonished to see a prominent advertisement for a product they had just looked at on another site. Turned out it wasn't a weird coincidence, but a sophisticated marketing approach known as "retargeting" that has also proven popular with lawyers seeking new clients. Retargeted ads, and how they fit into the often arcane world of attorney advertising and solicitation, are at the center of an opinion released October 9, 2020by the New York City Bar Association's Ethics Committee.

In a nutshell, Formal Op. 2020-2 provides the profession with four takeaways:

In posing the question of whether a lawyer's website can "use retargeting as an online marketing strategy," the Opinion provides an in-depth look at on-line advertising, which, in contrast to traditional billboard and newspaper advertising, can be more narrowly directed toward individuals with particular demographic features and web-searching history. The Opinion describes the use of cookies (which some websites require be specifically accepted by the consumer) to enable an advertiser to re-approach a potential customer who had already visited the advertiser's website.

The Opinion had little difficulty concluding that retargeting stemming from visits to a lawyer's website – which is itself regulated by the advertising rules – are similarly subject to the advertising rules, at least "if they are made by the lawyer regarding the lawyer's services and the primary purpose of the communications is retention of the lawyer for pecuniary gain."

Assuming they are covered by the advertising rules, retargeted advertisements must comply with various regulations, including that:

• They contain no statements that are "false, deceptive or misleading." RPC 7.1(a)(1);
• Under certain circumstances, they must contain the words "Attorney Advertising." RPC 7.1(f);
• They may not use meta tags or other hidden computer code that, if displayed, would violate the Rules. RPC 7.1(g)];
• They must include the name, principal law office address, and telephone number of the lawyer or law firm. RPC 7.1(h); and
• The law firm must pre-approve any advertisements, and any advertisement contained in a computer-accessed communication must be retained by the law firm for at least one year. RPC 7.1(k).

The Opinion found the question of whether retargeting falls within the "solicitation" subset of the advertising rules to be a closer question. RPC 7.3(b) defines solicitation as an advertisement by or on behalf of a lawyer or law firm "that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives" for the primary purpose of securing the lawyer's engagement and making money. Solicitation presupposes that the recipient has not specifically invited the outreach.

The Opinion recognized that a communication can be "directed to or targeted at" a specific individual or group of people based on either: (a) the content of the communication or (b) how it is distributed. With a retargeted ad, it noted that an advertiser generally does not know the identity of the person being re-targeted and generally lacks the ability to engage in real-time or interactive communications through the retargeting. Nor does the advertiser have the kind of information that would enable a personal meeting, letter, email, instant message, telephone call or interactive computer-accessed communication. As the Opinion observed: "In other words, a lawyer who employs retargeting has no way of knowing the identity of the individual who visited his website or even if the individual who visited the lawyer's website is the one who regularly uses the internet browser in which the cookie was placed."

Under the circumstances, the Opinion concluded that the "retargeting" process was typically not targeted enough either by reason of its content or the means of distribution to require compliance with the solicitation rules. It reached this general conclusion even though many of the retargeting recipients are obviously in need of the legal services offered by the advertisement.

Nevertheless, the Opinion recognized that a retargeted advertisement could still constitute a solicitation if it was able to direct itself to a more defined group than merely previous visitors, such as members of a specific organization or individuals who might have a common claim against the same defendant. In that event, the lawyer would be required to comply with solicitation rules, including:

• Filing a copy with the local Attorney Grievance Committee in the jurisdiction where the lawyer or law firm practices. RPC 7.3(c)(1)­(2);
• Refraining from sending the ad to a potential personal injury or wrongful death claim arising from a specific incident for 30 days from the date of the incident, and disclosing how the lawyer obtained the identity of the recipient and learned of his or her potential legal need. RPC 7.3(e)-(f); and
• Displaying the lawyer's name, principal office address and telephone number in the solicitation. RPC 7.3(h).

Finally, the Opinion questioned whether retargeting could violate rules against false and misleading statements, notably RPC 7.1(a)(1) and 8.4. It noted that individuals could be deceived if they visit a lawyer's website and do not know that they are accepting cookies that will lead to retargeting ads on other sites. Although an attorney's silence in some contexts can constitute deceit, the Opinion found that online retargeting has been ubiquitous for several years and most consumers have long since realized that the on-line ads they see are not random. Visitors to websites are also increasingly accustomed to receiving a pop-up message notifying the visitor that the website uses cookies for certain purposes and, sometimes, requiring specific acceptance. Accordingly, retargeting would not be considered inherently deceptive so long as the law firm makes some disclosure – consistent with standard practice – that it uses cookies on its website.

Formal Opinion 2020-02 is a useful addition to the ethics opinions regarding advertising and solicitation at a time of new marketing approaches. One can readily envision the need for further guidance in the future as legal advertisers gain even more specific insight into those who are visiting them and why. Such refinement could well require a reassessment of when retargeting qualifies as solicitation and necessitate some delicate ethical judgments.

Originally Published by Frankfurt Kurnit, December 2020

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