August 28, 2019 Scruples

Legal Ethics and Geofencing

Geofencing is a marketing technique that sets virtual geographic boundaries or ‘fences’ for advertising and other promotions.

Michael Downey

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Paradox’s text was short: “Let me know when you can talk. I have a question for you.”

Seeing the text, Ethox called Paradox promptly. “What has you worried?” Ethox asked, skipping any pleasantries.

“Do you recall the ACME rocket sled case we were defending?” Paradox responded. Sensing Ethox remembered, Paradox continued, “We are getting ready to try the case. Nemesis is claiming the sleds are dangerous and will seek punitive damages.

“ACME just asked me if they could use geofencing to promote the safety of the sleds near the courthouse,” Paradox reported. “I am not even sure what geofencing is.”

“Fortunately, I do know a little about this,” Ethox said. “I was just reading that a California court dealt with geofencing by a defendant, a manufacturer of the herbicide Roundup, in a case called Pilliod v. Monsanto Co.” [Case No. RG17862702, JCCP No. 4953 (Cal. Super. Ct. Alameda Cty. filed June 2, 2018)]

“Oh, good, so you can tell me what geofencing is?” Paradox insisted.

Geofencing is a marketing technique that sets virtual geographic boundaries or ‘fences’ for advertising and other promotions,” Ethox explained. “When a smartphone or similar device enters, leaves, or is located in the fenced area—the geographic area marked by the virtual boundary—the device receives a communication, sometimes a text or alert.

“In Pilliod,” Ethox continued, “the plaintiffs alleged that the weed-killer Roundup caused non-Hodgkin’s lymphoma. As the case was going to trial, Roundup’s manufacturer apparently used geofencing to tell smartphone users near the courthouse about the safety of Roundup and similar products. Upon learning of the defendant’s pro-Roundup geofencing, the plaintiffs apparently asked the court to enjoin the defendant’s activities,” Ethox concluded.

“So what happened?” Paradox asked. “Did the court grant the injunction or impose sanctions?”

“According to news reports I saw, no,” Ethox answered. “The defendant argued its conduct was speech protected by the First Amendment. The court agreed, saying the manufacturer had an interest in selling its products and that the geofence communications were not much different than people wearing buttons in court or gathering outside a courthouse and holding signs about a pending trial.

“Also, it would be hard to argue the geofence communications were improper communications with jurors or the like and thus violations of ABA Model Rule 3.5(b),” Ethox said. “The jurors had been told to avoid extrajudicial communications about the matters at issue at trial, and the plaintiffs could not show their right to a fair trial had been violated.”

“This geofencing sounds quite powerful,” Paradox mused. “Could a law firm use it to advertise legal services? For example, could we send a message to people visiting a hospital asking if they needed a lawyer?”

“Probably,” Ethox responded. “A few years ago, there were reports that anti-abortion groups were using geofencing to identify and send content to women visiting abortion providers. The big concern I would have for lawyers,” Ethox warned, “is whether such geofenced advertisements would be regulated as advertisements under Rule 7.2 or as solicitations under Rule 7.3. If the geofenced promotions were solicitations, it would be much harder to comply with ethics rules. In fact, some states’ versions of Rule 7.3 would likely prevent any geofenced advertising by lawyers.

“But if Rule 7.3 did not apply,” Ethox completed the thought, “a law firm could almost certainly design an advertising campaign that used geofencing and complied with all applicable ethics rules. This would be particularly true if the state had adopted advertising rules similar to the Model Rules after the 2018 amendments. But no state has adopted those 2018 amendments yet.”

“Very interesting,” Paradox said. “Perhaps we will have to discuss that more later. But first I have to get ready for—and hopefully win—this trial for ACME against Nemesis.”

Michael Downey

The author is a legal ethics lawyer at Downey Law Group LLC, a St. Louis law firm devoted to legal ethics and the law of lawyering.


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