The next 'thing' in attorney advertising?

By Pat Murphy
BridgeTower Media Newswires
BOSTON — Personal injury lawyers in neighboring states are using geofencing to get their ads on the mobile devices of accident victims who recently might have checked into a local emergency room.

But while digital marketers elsewhere are just scratching the surface on the potential of “geofencing” for use in lawyer advertising, there’s a question whether the technique — which uses global positioning or radio frequency identification to define a geographic boundary — has much of a future in Massachusetts because of state consumer protection laws.

William Kakis, owner of Tell All Digital, an internet marketing firm in Framingham, New York, is a leader in promoting geofencing for lawyer advertising.

Kakis has clients across the country, including New York, Connecticut, New Jersey and in the southeast.

He has yet to receive any pushback from state regulators or consumer advocates. The fact that he doesn’t have a single client in Massachusetts perhaps should come as little surprise.

In April 2017, Attorney General Maura T. Healey reached a settlement with a Brookline digital advertising company that was hired by anti-abortion groups to use geofencing technology to target women entering reproductive health facilities with pro-life ads.

The AG’s Office claimed such practices would violate G.L.c. 93A, §2, which prohibits unfair methods of competition and unfair or deceptive acts or practices.

Under the AG’s settlement with Copley Advertising and owner John F. Flynn, the company is prohibited from engaging in its anti-abortion advertising campaign in Massachusetts.

Without the benefit of an investigation into an actual case or controversy, the AG’s Office declines to comment on whether state law would prohibit the geofencing of health care clinics for advertising in other contexts.

However, a statement by Healey issued by her office doesn’t bode well for Massachusetts lawyers considering geofencing as part of their future marketing efforts.

“These reports of digital ambulance-chasers secretly gathering consumers’ private medical [information] as they enter doctors’ offices raise serious concerns,” Healey writes. “Consumers should never be digitally surveilled when they seek health care.”

Worcester attorney Matthew R. Fisher chairs Mirick O’Connell’s health law practice group. Fisher views the AG’s action against Copley Advertising as stemming in part from the fact that it involved the highly sensitive issue of anti-abortion ads targeted at women visiting reproductive health clinics.

He can foresee the AG taking a more flexible position on the use of geofencing in less controversial contexts.

Though the limits of state law may be unclear, Renée M. Landers says the federal Health Insurance Portability and Accountability Act would not prohibit law firms from using geofencing to target advertising to patients of medical providers.

“HIPAA does not apply to entities that are not health care providers, health plans or health care clearinghouses, so any health information collected by other entities is not strictly subject to those requirements,” says Landers, director of health law studies at Suffolk University Law School. “[Chapter] 93A might apply, but HIPAA doesn’t do it.”

Kakis explains geofencing as drawing a perimeter on a Google map.

“You zoom down on a property or building or city, however big you want to go, and create that geofence,” he says.

A digital marketer uses the virtual barriers to trigger the sending of text messages, email alerts or app notifications when a mobile device enters the specified area.

Kakis says digital marketers can choose how intrusive they want to be in their advertising. He advises his own clients to use a light touch.

“Nobody’s going to get a text message and nobody’s phone is going to vibrate or ‘ding,’” he says.

According to Kakis, the technology he encourages his clients to use places attorney ads that appear when a user scrolls through news and weather sites, just like other online ads.

His ads might include features such as promotional videos prepared by the attorney, client testimonials or images of a flashing “INJURED?”

“These are all things that everyone has agreed to under the terms of service when they download an app,” he says.

Kakis says his pricing model is based on the number of “impressions,” a term used in digital marketing to describe when an online ad appears before the mobile device user, whether it is clicked on or not.

“Depending on how many locations a law firm might want to contact, we may contract for the firm to purchase say a million impressions over a three-month period,” he says.

Declining to be more specific, Kakis says most attorneys should be prepared to spend in the ballpark of a couple thousand dollars a month for his services.

Apart from targeting locations such as ERs, vehicle impound lots and auto body repair businesses for PI attorneys, Kakis says he can also target locations for other practice areas, such as Social Security benefit offices, immigration centers and detention facilities for criminals.

Kakis says he can also envision an attorney trying to gain an edge by geofencing the office of a competing lawyer.

“Say you’re in a waiting room at an attorney’s office,” Kakis says. “Once I’m in there for five or 10 minutes, my mobile ID gets picked up by the [geofencing] technology.”