Digital Marketing in an Analog World
![handle is hein.journals/geojlege29 and id is 1220 raw text is:
Digital Marketing in an Analog World
JUSTIN ORR*
INTRODUCTION
While bar associations and academics nationwide work to delineate proper
from improper content in internet legal advertising, lawyers are beginning to
adopt technology common in other businesses to both analyze who is viewing
that content and how to distribute it more effectively. Search engines like Google
average 3.5 billion searches a day and have replaced the yellow pages and legal
directories that occupied pre-digital hegemony.1 The banner ads affixed to
websites are no longer like unchanging roadside billboards, but expertly placed
solicitations based on the viewer's personal information. Rules 7.1 through 7.5 of
the Model Rules of Professional Conduct, which regulate a lawyer's ability to
advertise, represent norms originating in print-based media and provide little
guidance for this new technology.
Though Comment 1 to Rule 7.3 permits communications to the general public
such as billboards or Internet banner advertisements, it prohibits real-time
electronic communications.,2 This ignores the reality that many internet banner
advertisements and search engine results, while seemingly directed to the public
at large, are often generated in real time based off the specific keywords a person
uses and by their past browser activity.3 Sophisticated algorithms parse this data
and create a character profile of the user ranging from generalities like sports
fan to interested in visiting the British Virgin Isles.4
This new wrinkle in what it means for an online advertisement to be in real
time straddles an uneasy line between the traditional yellow page advertisement
and a direct message. While these ads are not direct solicitations in the way a
human generated email, phone call, or instant message is, this level of
individualized advertising has no print media analog. The Model Rules must alter
their comments to address how Internet advertising is distributed, specifically
through search engines and banner advertisements.
* J.D., Georgetown University Law Center (expected May 2017); B.A., University of Notre Dame (2014).
© 2016, Justin Orr.
1. Internet Live Stats, Google Search Stats, http://www.internetlivestats.com/google-search-statistics/ [https://
perma.cc/JNX9-M6LR].
2. MODEL RULES OF PROF'L CONDUCT R. 7.3 (2016) [hereinafter MODEL RULES].
3. Natasha Singer, Your Online Attention, Bought in an Instant, N.Y. TIMES (Nov. 17, 2012), http://www.
nytimes.com/2012/11/1 8/technology/your-online-attention-bought-in-an-instant-by-advertisers.html [https://
perma.cc/7FHC-2BBWI.
4. See James P. Nehf, Recognizing the Societal Value in Information Privacy, 78 WASH. L. REv. 1, 20 (2003).
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Digital Marketing in an Analog World
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