These days, most consumers who decline to purchase a pair of shoes or jeans or car insurance from an online site are accustomed to discovering that jilted object of their interest is stalking them around the internet, turning up everywhere in the form of “retargeting ads.” While many consumers find these ads downright annoying, for others, they can be potentially embarrassing or downright dangerous when they involve legal services.
At least one #altlegal business provider, Legal Zoom uses retargeted advertising. After visiting the Legal Zoom site to research some offerings for a blog post, I began noticing Legal Zoom ads popping up on my Facebook page and other sites that I’ve visited.
That’s troubling. For example, consider what might happen if a domestic violence victim ventured to the Legal Zoom site on a shared home computer looking for information on divorce. Later that evening, her spouse uses the machine and notices LegalZoom ads popping up at other websites – which could rouse his suspicion and trigger additional abuse. While it’s true that retargeting ads don’t necessarily reveal the nature of a prospective client’s legal problem, because retargeting ads are generated in response to an earlier visit to the site, they signal that a prior user visited the site.
Of course Legal Zoom isn’t a law firm and as such, isn’t subject to the same ethics considerations as attorneys. Moreover, it’s not even clear that retargeting ads would violate ethics rules on confidentiality. For example, a few years back, Mark Bennett criticized a criminal defense attorney’s practice of sending mailers offering legal services to criminal charges to potential clients. Though it was clear to Mark that the letters would “tell anyone who sees [them] that the addressee is charged with a crime,” in violation of Texas ethics rules, the state bar did not agree. That same reasoning could apply with even more force to retargeting ads, which in the case of Legal Zoom only suggest that a prospect has visited a site, but does not specify that legal services sought to be procured.
Of course, that’s the current state of technology. A few years down the line, companies may be able to leave personalized ads for users, with specific information about their visit. So even if retargeting ads don’t pose concerns now, it’s possible that these ads, or other similar technologies could give rise to concerns in the future.
No, we don’t need a specific ethics rule to cover retargeting ads. Lawyers can glean from existing rules whether retargeting ads pass ethical muster or not. But more importantly, even if a practice is ethical doesn’t make it a smart or appropriate way to advertise. Put another way, just because we can, doesn’t mean we should.
In the Internet age, where many of us let it all hang out without understanding the consequences, it’s up to lawyers to preserve our client’s confidentiality and privacy - whether they recognize the importance or not. Retargeting ads potentially compromise confidentiality, privacy and dignity. Ethical or not, in my view, lawyers shouldn’t use them. At a minimum, it’s a way to set ourselves apart from Legal Zoom.