Can a law firm use retargeting (ads that follow website visitors around the web) without violating the attorney advertising and solicitation rules?

Plain-English summary

The opinion addresses retargeting, the online marketing technique in which a website visitor later sees that site's advertisements as they browse elsewhere. It concludes a lawyer's website may use retargeting provided the retargeted advertisements comply with the New York rules governing attorney advertising and solicitation.

On solicitation, the opinion concludes that retargeting by itself does not constitute solicitation under Rule 7.3. If, however, a lawyer's advertisements are sufficiently targeted by their content (for example, directed to a specific legal matter), the lawyer must comply with the solicitation rules that apply to such targeted communications.

On honesty, the opinion concludes that using retargeting does not, by itself, involve dishonesty, fraud, deceit, or misrepresentation under Rule 8.4 so long as the lawyer's website discloses, in some form, that it collects data from visitors (such as through cookies) that may be used for advertising purposes. That disclosure is what keeps the practice from being deceptive.

In practice

Under this opinion, as the New York advertising rules stood at the time, a firm may run retargeting campaigns if the ads themselves meet the advertising rules, treat purely behavioral retargeting as advertising rather than solicitation, and apply the solicitation rules when the ad content is targeted to a specific legal need. The opinion ties the deception analysis to disclosure: a website that tells visitors it uses cookies for advertising will not, on that basis, run afoul of Rule 8.4.

Common questions

Q: Can my law firm use retargeting ads?

A: Yes, if the ads follow the advertising rules. The opinion concludes a lawyer's website may use retargeting provided the retargeted advertisements comply with the rules governing attorney advertising and solicitation.

Q: Is retargeting considered solicitation?

A: Not by itself. The opinion concludes retargeting alone does not constitute solicitation, but if the ads are sufficiently targeted by their content the lawyer must comply with the solicitation rules.

Q: Do I have to disclose that my site uses cookies?

A: To avoid a deception problem, yes. The opinion concludes that retargeting does not violate Rule 8.4 so long as the website discloses, in some form, that it collects visitor data, such as cookies, that may be used for advertising.

Background and rules framework

The opinion interprets New York Rules of Professional Conduct governing lawyer marketing: Rule 7.1 (advertising), Rule 7.3 (solicitation and targeted communications), Rule 8.4 (misconduct, including dishonesty and misrepresentation), and the definition in Rule 1.0(a). New York's advertising and solicitation rules are more detailed than the Model Rule analogues (Model Rules 7.1 through 7.3), and the opinion applies the New York provisions to a digital marketing technique.

Citations and references

Rules of Professional Conduct:

• NY RPC 7.1 / MR 7.1 (attorney advertising)
• NY RPC 7.3 / MR 7.3 (solicitation; targeted communications)
• NY RPC 8.4 / MR 8.4 (dishonesty, fraud, misrepresentation)
• NY RPC 1.0(a) (definition of "advertisement")

See also

• NYC Bar Ethics Op. 2015-7: Attorney advertising rules and LinkedIn
• NYC Bar Ethics Op. 2017-1: Payment of fees to a legal referral service

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2020-2-whether-lawyers-may-use-retargeting-in-online-marketing/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/2020778-ETHICS_Retargeting_Opinion.pdf