You have a small firm that concentrates on civil litigation in the town of Erewhon in the state of Bliss.
Seeking to expand your practice, you have launched a new area of practice involving estate planning. One other firm in town, Howard Fine & Howard, has an established practice in this area.
To help get the word out about this new aspect of your practice, you are considering using a method known as “keyword advertising” on the internet that will help to bring attention to your firm.
Keyword advertising involves registering certain words or phrases with particular search engines that will automatically pull up links to your firm every time someone in your geographical area types in a search that includes the same keywords or phrases.
For example, if someone seeking “estate planning services in Erewhon” typed in that phrase, and you registered a combination of those terms as keywords, your firm’s name and a link to your firm’s website would automatically appear at the top of the search screen under “sponsored searches.” Similarly, if you used an established competitor’s name as a keyword such as Howard Fine & Howard and someone were to type in the competing firm’s name, your firm name would again appear at the top of the search screen.
Can you use such advertising methods?
Can you use a competitor’s name as a keyword?
State bar ethics opinions
Two state bar ethics committees have considered these questions. In Opinion 2010-14 (2012), the North Carolina State Bar Ethics Committee considered whether a lawyer could use a competitor’s name as a keyword. Citing Rule 8.4(c) of the North Carolina Rules of Professional Conduct, the North Carolina committee stated:
…It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. …The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.
In 2013, the Florida Bar’s Standing Committee on Advertising issued advisory opinion A-12-1 that stated that competitive keyword advertising is “deceptive and inherently misleading.” The Florida Bar’s Board of Governors subsequently vacated that opinion concluding that:
[T]he purchase of ad words is permissible as long as the resulting sponsored links clearly are advertising based on their placement and wording, and because meta tags and hidden text are outdated forms of web optimization that are penalized by search engines and can be dealt with via existing rules prohibiting misleading forms of advertising.
(For further information on the withdrawal of Florida Proposed Advisory Opinion A-12-1, click on this link and scroll down to the heading, Proposed Advisory Opinion A-12-1 Withdrawn by Board of Governors.)
In 2016, the State Bar of Texas issued Opinion 661 that considered a similar set of facts but arrived at a different result. In this opinion, the Texas committee first considered whether the use of keywords that included a competitor’s name would result in a violation of subpart (d) of Texas Disciplinary Rule of Professional Conduct 7.01 Firm Names and Letterhead of the Texas Rules of Professional Conduct. Subpart (d) states:
(d) A lawyer shall not hold himself or herself out as being a partner, shareholder, or associate with one or more other lawyers unless they are in fact partners, shareholders, or associates.
The committee noted that to the extent that an internet search using a competitor’s name would trigger an advertisement that implied that the lawyer using the keywords and the competing firm were associated with one another, this could be a violation of the Texas advertising rules.
However, the committee concluded that as a practical matter this is very unlikely, since the typical internet searcher would surely understand that a search for Howard Fine & Howard that generated search results that included a link to the hypothetical lawyer’s estate planning services would not carry with it the implication that the two practices were associated with one another.
The committee also considered whether the use of a competitor’s name as a keyword violated 8.04 (conduct involving dishonesty, fraud deceit or misrepresentation) of the Texas Disciplinary Rules. The committee concluded:
…In the opinion of the Committee, given the general use by all sorts of businesses of names of competing businesses as keywords in search-engine advertising, such use by Texas lawyers in their advertising is neither dishonest nor fraudulent nor deceitful and does not involve misrepresentation. Thus such use of a competitor’s name in internet search-engine advertising is not a violation of Rule 8.04(a) (3).
Case law
There has been some case law in this area.
In In Re Naert 777 S.E. 2d 823 (2015) the Supreme Court of South Carolina considered the case of a lawyer who had a practice that concentrated in timeshare litigation. This lawyer had sued the same timeshare company several times in the past. In an effort to attract new business, the lawyer used the name of the law firm that routinely defended the timeshare company as well as the name of the company itself as keywords. Whenever someone searched for this particular firm or the timeshare company on the internet, the following advertisement would appear at the top of the screen that stated:
Timeshare Attorney in SC – Ripped off? Lied to? Scammed?
Hilton Head Island. SC Free Consult
The court found that this violated Rule 7.2 of the South Carolina Rules of Professional Conduct, in that the advertisement did not include the names of the lawyers who were responsible for the advertisement. The court also found that the lawyers had violated the South Carolina Lawyer’s Oath (Rule 402(k) of the South Carolina Appellate Court Rules (SCACR) that states:
… [B]y taking Lawyer’s Oath, lawyer pledges to opposing parties and their counsel fairness, integrity, and civility in all written communications and to employ only such means consistent with trust, honor, and principles of professionalism.
The lawyer was publicly reprimanded.
In Habush v. Cannon, 2013 WI APP 34 (2013) the Wisconsin Court of Appeals found that the use of a competitor’s name as a keyword was not a “use” that was a violation of the Wisconsin invasion of privacy statute.
In this case, the defendants were personal injury lawyers in Wisconsin, and they used the name of an established personal injury law firm as a keyword, so that every time an individual searched for the established firm’s name, an advertisement for the defendant’s law firm would appear in a prominent location on the search results screen.
The plaintiffs argued that the defendant’s use of their name violated the Wisconsin invasion of privacy statute. The court disagreed, noting that in every case where there was a finding that the privacy statute had been violated there was a visible use of the name of an individual or business without their consent. Here, there was no visible use of the name.
The court also analogized the use of the keywords as analogous to “proximity advertising,” noting that nothing would prevent a business placing a billboard next to a competitor’s. The court stated:
…We agree with the circuit court, that locating an advertisement or business near an established competitor to take advantage of the flow of potential customers or clients to the established business is not a practice the legislature intended to prohibit by adopting WIS. STAT. § 995.50(2) (b). This strategy undeniably takes advantage of the name of the established business and its ability to draw potential customers, but the strategy does not “use” the name of the business in the same way as putting the name or image of the business in an advertisement or on a product. – Habush at page 14.
**************
For further information on this topic and further analysis of the issues addressed in this article, See, Regulation of Lawyers’ Use of Competitive Keyword Advertising, 2016 U. Ill. L. Rev. 103, and the discussion under the heading, Search Engine Optimization Techniques as it appears at page 81:558 of the ABA/BNA Lawyers’ Manual on Professional Conduct and as always, check the local rules of professional conduct, ethics opinions and case law of your jurisdiction.