Whether a lawyer or law firm may ethically bid on other attorneys' or law firms' names among the keywords in their pay-per-click campaign depends on the state(s) in which they practice. Although the practice, also known as competitive keyword advertising, is commonplace in many other industries, several recent opinions issued by bodies charged with regulating the legal profession have cast doubt on the viability of the practice by lawyers under current ethics rules. The information in this blog post is for informational purposes only and should not be taken as legal advice.
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Attorneys looking to market their legal services online have a wide variety of tools at their disposal, from websites and blogs to social media and lawyer directory listings, to name a few. One widely utilized strategy is to implement a pay-per-click advertising campaign, such as with Google’s AdWords, so that ads for your law firm show up next to or above the results of related keyword searches. This common practice, like other forms of attorney advertising, is not without its pitfalls however, as reflected by developing legal ethics authority. Specifically, you may find yourself subject to professional discipline if you bid on other attorney or law firm names as part of your AdWords campaign.
Google AdWords is by far the most commonly used platform for pay-per-click advertising, which at the most basic level consists of advertisers bidding on search terms they believe to be relevant to their marketing campaigns, users running searches with those terms, and then advertisers’ ads possibly appearing alongside users’ organic search results. Advertisers only pay the search engine when a user clicks on their ad, hence the term “pay-per-click.”
Not All Uses of Pay-Per-Click Advertising Are Problematic for Attorneys
Pay-per-click advertising in and of itself is not something that lawyers need to avoid. The particular practice at issue here is when a lawyer or law firm bids on other attorneys’ or law firms’ names among the keywords in their pay-per-click campaign so that user searches for legal industry rivals potentially bring up an ad for their own firm along with other results. While this marketing strategy, also known as competitive keyword advertising, may not be considered problematic in all industries, recent opinions related to professional responsibility for lawyers cast doubt on the viability of this approach for attorneys under current legal ethics rules.
Legal Ethics Rulings Against Using Competitors’ Names in Keyword Advertising
In September 2015, the South Carolina Supreme Court sanctioned an attorney who had bid on the names of three rival attorneys, as well as their client company, against all of whom his firm had litigated timeshare cases. The ad corresponding to this attorney’s AdWords campaign read: “Timeshare Attorney in SC – Ripped Off? Lied to? Scammed? Hilton Head Island, SC Free Consult.” The attorney admitted that he did not identify himself or any other responsible attorney in the firm’s advertising materials, which was a violation of South Carolina Rules of Professional Conduct (RPC) Rule 7.2(d). He further agreed with the state bar officials that by using the other attorneys’ names in a “derogatory” manner, he had violated provisions of the Lawyer’s Oath contained in South Carolina Appellate Rule 402(k), which requires admitted attorneys to treat opposing counsel with “fairness, integrity, and civility in all written communications,” and to use “only such means consistent with trust, honor, and principles of professionalism” when practicing law. The court did not elaborate on whether it was the mere use of the rival attorneys’ names, or the use in the context of the particular language in the ad, that made the use “derogatory” and therefore a violation of the Lawyer’s Oath.
A 2012 North Carolina State Bar advisory opinion is much more explicit about its reasons for reaching a similar conclusion. Setting out a hypothetical involving one attorney bidding on the name of another as part of an AdWords-like campaign, the opinion specifically states that this practice is a violation of North Carolina RPC Rule 8.4(c), which prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation,” and which has been interpreted to include conduct demonstrating a “lack of fairness or straightforwardness.” The opinion goes on to explain that the deliberate purchase of “the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward,” and thus constitutes dishonest conduct. This ruling has since been enforced in that state.
This is significant because the North Carolina RPC Rule 8.4(c)’s treatment of dishonest conduct not only mirrors the the American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) Rule 8.4(c), but also reflects the prohibition on false or misleading statements in attorney advertising set forth in Rule 7.1 of the Model Rules, which have been adopted in one form or another in almost every jurisdiction. This would suggest that in states where there is not yet any binding authority on the legal ethics of using competitors’ names in keyword advertising (which is currently most of them), attorneys should consider carefully before proceeding with this particular marketing strategy.
Rulings Allowing Lawyers to Bid on Names of Other Lawyers or Law Firms
It is worth noting that a small number of jurisdictions have addressed this issue to some degree and reached the conclusion that attorneys may bid on other attorneys’ names in keyword advertising. For example, a 2013 state appellate court ruling out of Wisconsin agreed with the defendant law firm (who had bid on the names of the plaintiff firm’s attorneys) that the practice was permissible. However, the basis for that conclusion was a state privacy statute rather than legal ethics authority, and the court took care to limit its ruling to the particular context of that case.
The Florida Bar has spoken more directly to this issue, expressly finding that attorneys may bid on other lawyers’ names as part of an AdWords campaign so long as the corresponding links are clearly advertisements. Notably, this conclusion served to reverse a proposed advisory opinion that, similar to the North Carolina rule, characterized lawyers’ practice of keyword advertising using competitors’ names as being inherently misleading. The withdrawal notice does not provide a clear explanation for the reversal on this specific point.
Practical Takeaways for Legal Marketing Under Current Rules
In light of the general dearth of authority on this question across most jurisdictions, the split among the small number states that have considered this issue, and the relationship between bans on this practice and Model Rules 8.4(c) and 7.1 (and their state analogs), you may be questioning the wisdom of bidding on other lawyers’ names in your keyword advertising campaign. In addition to risking professional discipline in many states, attorneys engaged in this practice may also find themselves the targets of civil lawsuits brought by their competitors, as reflected by the Wisconsin example above.
This issue, like many others related to the ethics of online legal advertising, is an evolving one, and competitive keyword advertising might become a clearly permissible practice for lawyers in the future. Nonetheless, as demonstrated by the above examples, the current state of the law warrants caution on the part of attorneys considering taking this approach.
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