Social media and smart phones have unleashed a flood of new advertising possibilities. Unfortunately, each have a unique set of ethical concerns.
Many of us have seen ads on Facebook to the right side of the screen listed under the heading, “Sponsored.” They’re short ads with some teaser text that tries to entice you to click through to get more information. That’s the same type of ad being used on the popular Pandora radio smart phone app (and its competitors). Pandora is an internet radio station that lets you customize the music you hear. The popular free version of Pandora is subsidized by short teaser ads that are displayed on your phone. Usually those ads contain little more than a photo and a marketing tag line that entice you to click through, just like the Facebook ad. The problem is that both the Facebook and Pandora ads potentially violate Rule 7.2.
RPC 7.2(c) states that, “Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.” Obviously, the Facebook and Pandora “teaser” style ads don’t include that mandatory information. Sure, you might be able to click through the ad and find yourself on a landing page that has the required information, but it’s not there on the face of the ad and, as a result, appears to violate the rule.
The other type of new advertising technique that may be off limits to lawyers is the popular Groupon application. Groupon negotiates discounts with businesses and then offers the deal to thousands of subscribers in a free daily email. Groupon makes money by getting paid a percentage of what the advertiser earns. The problem is that if the advertiser is a law firm, that arrangement might constitute improper fee splitting per RPC 5.4(a).
In fact, a proposed (but unpublished) North Carolina ethics opinion states that the Groupon arrangement is not permitted, but the question has been referred to a subcommittee for further review. You can read about the details a bit more in an ABA Journal article here.
It’s the same old story. This wonderful technology brings both new opportunities and new pitfalls as well.