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Legal marketing: Geofencing used by lawyers, but regulatory, privacy picture fuzzy

Thursday, December 09, 2021 @ 9:57 AM | By Cristin Schmitz


A woman surfs the Internet in a hospital emergency department after hurting her ankle in a slip and fall on public property. On the websites she visits, she notices an advertisement for a local personal injury law firm keeps showing up — an ad which follows her around for days afterward.

Welcome to “geofencing” — a new and growing mobile marketing tool used by businesses that can deliver location-based digital advertisements to smartphone users who unknowingly pass through invisible digital “geofences” erected for commercial purposes at specified geographic areas. Locations where geofencing could offer the possibility to target potential clients for law firms might include hospital emergency rooms, autobody shops, chiropractors’ offices, funeral homes, immigration centres, police stations or courthouses

In use by some attorneys for about a decade in the United States — where it has raised professional conduct questions — the technology could have potential marketing applications in many areas of legal practice — for example, personal injury, class actions, wills and estates, immigration and criminal defence. (Quaere what would happen if a law firm geofenced another law firm to target ads at its competitor’s clients — a common geofencing practice amongst commercial competitors in other lines of work!) 

In Canada geofencing is still mostly unknown in the legal profession (although more familiar to the personal injury bar).

Some Canadian law firms are already using geofencing to successfully build their brand and advertise themselves to potential clients, legal marketers tell The Lawyer’s Daily.

However, as much as geofencing is a novel marketing tool for lawyers here, it is also a cutting edge professional regulation issue in Canada.

There are also open questions as to whether at least some types of geofencing that might be of use for law firm marketing purposes would violate consumer and privacy protections, such as the federal Personal Information Protection and Electronic Documents Act (PIPEDA) by which most law firms are bound.

“We do not have specific guidance on advertising as it pertains to geofencing,” Vito Pilieci, senior communications adviser to the Office of the Privacy Commissioner of Canada, told The Lawyer’s Daily.

“You have asked a question about a specific set of circumstances,” he said. “Given we have not examined a matter such as this specifically, we are not in a position to provide comment.”

Speaking generally, however, Pilieci noted that PIPEDA sets out a number of obligations for organizations to which it applies, including “that any collection, use or disclosure of personal information must only be for purposes that a reasonable person would consider appropriate in the circumstances.”

“I am not aware of law society guidance available in Canada on the use of geofencing in lawyer marketing,” University of Ottawa law professor Amy Salyzyn told The Lawyer’s Daily.

Referring to existing law society rules, Salyzyn, who is president of the Canadian Association for Legal Ethics, pointed out, for example, that the Law Society of Ontario (LSO) mandates that when offering legal services, lawyers “shall not use means” that “take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover.”

“Depending on the circumstances and the nature of the ad content, there could be a concern with lawyers improperly taking advantage of vulnerable people, if geofencing is used by lawyers to target people in health-care facilities, such as emergency rooms in hospitals,” Salyzyn suggested.

(For a survey of law society marketing and advertising rules across Canada, see here.)

The Lawyer’s Daily asked Canada’s largest society whether geofencing by lawyers — such as around a hospital emergency room — would comply with the regulator’s rules of professional conduct. 

LSO spokesperson Jennifer Wing referred us generally to the current advertising rules (which don’t mention geofencing or anything like it), noting via e-mail “the law society does not provide advanced rulings about advertising or marketing practices, or consider individual licensee advertising or marketing outside of the complaints process.”

Wing did say, however, that no Ontario lawyer has inquired about geofencing to the LSO’s Practice Management Helpline. “Before undertaking any new marketing practice, lawyers should review the tactic against their obligations under Chapter 4 of the Rules of Professional Conduct,” she advised. “Lawyers who have questions about the applicable requirements may contact the Practice Management Helpline for guidance.”

Salyzyn said law societies should be more proactive in offering guidance on emerging professional conduct questions about technology uses that are brought to their attention outside the context of a complaint against a specific lawyer or firm.

This would help their own members to comply with the rules, and thereby better serve, and protect, the public, in line with the legal regulator’s prime directive.

“This is likely an area where more law society scrutiny and guidance would be helpful,” advised Salyzyn, who has publicly argued for some time that there exists a need for law societies to provide ethics opinions for lawyers on the use and risks of emerging technologies, as is regularly done in the United States. “This seems like an area where an ethics opinion could be helpful,” she said.

 Shamil Shamilov, dNOVO Group

Shamil Shamilov, dNOVO Group

The legal and regulatory backdrop for some uses of geofencing by law firms might be fuzzy, but at least a few personal injury law firms in Canada, particularly in the highly competitive greater Toronto area, are using it, said Shamil Shamilov, “lead strategist” for dNOVO Group, a digital marketing agency in Toronto with a focus on law firm marketing.

Shamilov told The Lawyer’s Daily he sees geofencing as a growth area for legal marketing because its “a more targeted way to do branding … it’s the way to be in front of the eyes of your potential audience.”

He explained traditional advertising targeting the public at large — for example, via TV, billboards or the back of a bus — is not only expensive, it “doesn’t really identify an audience.”

“What if you could [promote your brand to] every single person that gets admitted in the hospital?” he said. “It’s a lot more efficient, because it’s to a lot more narrow audience.”

Shamilov estimates a geofencing campaign would run a minimum of $2,000 to $3,000 a month — a not-inconsiderable sum. However, the return on investment “is significantly, significantly higher” than many other forms of advertising, he said.

“One hundred thousand dollars on television ads is nothing,” Shamilov remarked. “For $100K for remarketing, you and I can really go to town for a year. ... We could be in every hospital, every physiotherapy clinic … and then it’s up to the creative team [at my firm] to think of how we would sway [potential clients]” via the targeted digital ads.

 Dan Davidson, Umbrella Legal Marketing

Dan Davidson, Umbrella Legal Marketing

Dan Davidson, co-managing partner of Umbrella Legal Marketing in Toronto, said geofencing “is very useful for certain areas of practice.”

“It can be very, very lucrative,” he said.

But geofencing is also “a double-edged sword,” he added, which can play into the public’s concerns about their online privacy, while feeding a negative stereotype of lawyers as ambulance chasers. “Geofencing is very much Big Brother,” Davidson said. If the public and potential clients are not receptive, because they consider such digital targeted ads too intrusive, “then it’s going to work against you,” he suggested.

Going back to the hypothetical injured woman surfing the web in a hospital emergency room, is she a victim of digital ambulance chasing —in possible violation of professional conduct rules on lawyer advertising and solicitation of clients — or is she a consumer and prospective client who might well benefit from targeted advertisements that are neither false nor misleading and that might assist her in her very hour of need?

South of the border that question was answered last year by a committee appointed by the New Jersey Supreme Court, which interpreted a professional conduct rule against targeting vulnerable clients that is comparable to rules in Canada.

The New Jersey Supreme Court’s committee concluded that while geofencing or geo-targeting by attorneys is “not flatly prohibited,” practically speaking its use for mobile digital advertising does amount to unprofessional conduct in many of the situations where lawyers might find it helpful to attract clients.

“Such advertisements may not appear in geographical areas where at least some of the targets of digital advertising are reasonably likely to be in a compromised physical, emotional, or mental state,” stipulated the Committee on Attorney Advertising in its April 1, 2020 “Opinion 46: Geo-Fencing, Geo-Targeting and Similar Electronic Advertising Techniques.”

The New Jersey Supreme Court’s committee specified verboten areas for lawyer geofencing “include, but are not limited to, emergency rooms, hospitals, urgent care centers, funeral homes, police stations, courthouses, and accident sites.”

Moreover, “the lawyer’s advertisements must appear adjacent to the content of the website the internet user is visiting, and may not ‘pop-up’ or be presented in a way that the user must watch for a designated period of time before allowing the user to reach the chosen website.”

“Lastly,” the New Jersey committee warned, “digital advertisements specially tailored to victims of a mass-disaster event delivered to those victims by geo-fencing or geo-targeting techniques are prohibited.”

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613 820-2794.