Competitive Keyword Advertising. Unethical or a good marketing strategy?

Do you know what happens when potential clients use the internet to search for you?  More specifically, do you know whether your name returns more than your name?

Imagine I quit as bar counsel and open my own firm.  If that were to happen, a natural focus for me would be legal ethics and malpractice defense.  A lawyer in need of both doesn’t know how to contact me but has heard of this thing called “the internet.”  So, the lawyer searches “michael kennedy legal ethics.”  Some of you might be surprised to know that the search might not return my firm’s website at the top of the list.  Rather, if a competing firm has purchased keywords that include “michael kennedy” and “legal ethics,” that firm might show up above mine.

I know for a fact that there are Vermont lawyers who engage in competitive keyword advertising.  If you don’t believe me, think of a lawyer who practices in a certain area and search the lawyer’s name and practice area.  I am willing to bet all that I didn’t win in yesterday’s NFL games that the results at the top will include “ads” (or promoted results) for at least one of the lawyer’s competitors.

I can sense your reactions. Some of you are thinking “well that’s dishonest and misleading!”  Others of you are thinking “duh, that’s nothing but a good SEO strategy.”  Thanks to a tip from a regular reader, I can report that we will soon have additional guidance.

Last week, the New Jersey Supreme Court took argument on whether a lawyer violates the Rules of Professional Conduct by purchasing competitors’ names as keywords on search engines.  Courthouse News provided coverage.  Here’s the back story.

In June 2019, New Jersey’s Advisory Committee on Professional Ethics issued ACPE Opinion 735. In it, the Committee concluded:

  • “a lawyer may, consistent with the rules governing attorney ethics, purchase an internet search engine advertising keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. This conduct does not involve dishonesty, fraud, deceit, or misrepresentation, and is not conduct prejudicial to the administration of justice.”

The Committee further concluded:

  • “a lawyer may not, however, consistent with the rules governing attorney ethics, insert, or pay the internet search engine company to insert, a hyperlink on the name or website URL of a competitor lawyer that will divert the user from the searched-for website to the lawyer’s own law firm website. Redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website. Such deceitful conduct violates Rule of Professional Conduct 8.4(c).”

The Committee’s opinion concurs with the State Bar of Texas’s Formal Opinion 661 and this decision from a Wisconsin court.  By contrast, in 2010 Formal Ethics Opinion 14, the North Carolina State Bar concluded that a lawyer violates the rules by purchasing a competitor’s name as a keyword.

I don’t know New Jersey’s procedural rules.  However, the New Jersey State Bar Association disagreed with the Advisory Committee’s conclusion and, per Courthouse News, “pushed the state Supreme Court on Tuesday to hold that attorney advertising rules forbid lawyers from purchasing the names of competing counsel as keywords on search engines.”  The NJSBA argued that such a practice is deceptive and misleading.  The NJ Attorney General defended the Committee’s conclusion.  I don’t want to get into a series of block quotes with the competing arguments and the questions asked by the justices on the New Jersey Supreme Court.  Again, Courthouse News has in-depth coverage of the argument.

I understand why competitive key word advertising causes a negative reaction. As a lawyer argued in this post in the New Jersey Law Journal:

  • “Nevertheless, competitive keyword advertising is unethical in the greater sense of the word ‘ethics.’  At the least, ‘buying’ a colleague’s name and using it as bait in front of her potential clients violates the Golden Rule. Who among us would not resent his or her name being a keyword on another lawyer’s site? Who would okay another to siphon off the fruits of her goodwill? If our colleagues would agree to our piggybacking on their success, why not just ask for their permission. But we know they would object, so we do it with neither their knowledge nor consent. While that may be fair play in the marketplace, the practice is not only morally repugnant, it neither embodies who we are nor engenders the types of inter-attorney relationships we must have.”

However, as with most stories, there’s another side. Eric Goldman is a law professor at Santa Clara.  Professor Goldman’s Technology & Marketing Law Blog is in the ABA Journal’s “Blawg Hall of Fame.”  Professor Goldman discussed the New Jersey opinion in here. And, in 2016, Professor Goldman and a colleague authored this article in the Illinois Law Review in which they argued that competitive key word advertising is not misleading and should not be banned, concluding:

  • “Lawyers are notorious laggards when adopting and embracing emerging technological developments. Thus, even as the wars over competitive keyword advertising wind down everywhere else, it is not surprising that the legal industry is still working through its own (delayed) catharsis about the legitimacy of competitive keyword advertising. But other than the North Carolina ethics opinion, competitive keyword advertising by lawyers is not restricted by intellectual property law or attorney advertising rules. As a result, it seems that North Carolina’s rule is an outlier that needs to be fixed, and North Carolina bar regulators should reconsider the matter. We also hope other bar regulators will affirmatively acknowledge, like the Florida bar did, that competitive keyword advertising is permissible.”

I lean towards the position adopted by Professor Goldman, the State Bar of Texas, and the New Jersey Committee.  For example, once I hit “publish,” it’ll go to my LinkedIn and Twitter feeds.  Is using this picture misleading or deceptive?

Saul

I mean – this post is about legal advertising.  And who stands as a better source of material to frame a discussion of legal advertising than Slippin’ Jimmy?

That said, I’m willing to listen to argument to the contrary by anyone who agrees with the North Carolina State Bar.

For now, the legal ethics of competitive keyword advertising doesn’t seem to be a hot topic in Vermont.  Perhaps it’s a sleeping dog that I’ll regret not letting lie.  Alas, it’s Monday, and, come Friday, I can’t send out a week’s worth of posts unless I start somewhere.

This is this week’s start.

ps: I assume the race is on to buy “michael kennedy legal ethics.”

pps: if you don’t think that all these words about legal advertising have me ready to call it a day and watch my next episode of Better Call Saul, then here are my keywords for you: Simply Red.

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