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Direct solicitation rules apply to targeted social media ads

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Thomas BoppLawyers who deliver targeted ads through social media must comply with the Bar’s more restrictive direct solicitation rules rather than its general advertising rules, according to the Board of Governors.

The board, at its January meeting, overturned an 8-3 decision by the Standing Committee on Advertising regarding a lawyer who wanted to use information prospective class action members gave to social media platforms in order to target specific ads to their social media feeds.

The requesting lawyer did not give the specific situation he was pursuing, but as an example, the inquirer said in an employment class action litigation, the ad would be targeted to users who had told social media providers that they currently or previously worked for the defendant company.

“The advertising committee found that type of advertisement is not direct solicitation, but would only have to comply with the general advertising rules,” said board member Tom Bopp, chair of the Board Review Committee on Professional Ethics. “There are specific rules when you get to direct solicitation: More defined, more background information, how the lawyer obtained the information to identify that person.”

In earlier decisions, the Bar had determined that a lawyer posting information in an online chat room or sending text messages to phones must comply with direct solicitation rules, he said.

“It was a very robust, extensive discussion among the [committee] members,” Bopp said. “At the conclusion, the Board Review Committee voted 9-0 to recommend that the Board of Governors reverse the Standing Committee on Advertising . . . and find that these types of advertisements are direct solicitations and therefore would have . . . to comply with the direct solicitation rules.”

Without discussion, the board unanimously agreed by voice vote.

One result of the vote is lawyers who want to use targeted social media have to comply with Bar Rule 4-7.18(b). That rule prohibits lawyers from sending written or electronic communications to potential clients unless it involves a personal injury, wrongful death, or other accident or disaster-related matter that occurred at least 30 days before the communication. Those allowed communications also are subject to several additional regulations.

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