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.

Ethics of law firm names? The story of the Legal Genius.

Today’s question: is it possible to prove that a  self-proclaimed “legal genius” is not?

Genius

Before, I explain why I’m asking, I’ll share some background — if only to lend a modicum of educational value to a story surely bound to appear in a Was That Wrong? post.

It’s rare that I receive an inquiry or disciplinary complaint about the name of a law firm.  More broadly, I don’t recall the last of either that involved an attorney advertisement.  As such, I don’t often blog about the advertising rules.

I’m not a huge fan of the advertising rules.  I’ll never forget a CLE that I presented at a VBA meeting that took place at one of the state’s ski areas.  It was 2005 or 2006.  A few miles from the resort I passed a restaurant. Here’s what its sign said:

“World’s Best Breakfast!”

I’ll get back to the restuarant in a moment.

Anyhow, whether I’m fan is irrelevant.  Vermont’s lawyer advertising rules exist.  Here’s what we know:

A lawyer runs afoul of V.R.Pr.C. 7.5(a) by using firm name that violates V.R.Pr.C. 7.1.  In turn, V.R.Pr.C. 7.1 prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.”  The comments to Rule 7.1 include examples of statements that are inherently misleading, as well as of the types of omissions that make otherwise truthful statements misleading.

As applied, it’s unethical for a lawyer or law firm to use advertisements that (a) include unsubstantiated comparisons to the quality of legal services provided by others; or (b) create unjustified expectations as to the results the lawyer can achieve.  Thus, lawyers have been sanctioned for advertising as “the experts in” specified types of law, as well as for referring to themselves as a county’s “premier” firm in a particular practice area.

I’m left to wonder whether the restaurant on the mountain, in fact, serves the world’s best breakfast and whether anyone who has ever eaten there  left feeling otherwise.

Which brings me back to the question posed at the beginning.

LegalGenius is a law firm in Michigan. I don’t know what Michigan’s advertising rules are, nor do I know whether the lawyer who owns the firm is a legal genius.  Frankly, that seems to be the least of the lawyer’s concerns these days.

Last week, the lawyer who owns Legal Genius pled guilty to conspiring to defraud the IRS and to steal.  The DOJ announced the plea in this press release.  Outlets reporting the story include the ABA Journal, Forbes, and WXYZ Detroit.  The lawyer and co-conspirators were alleged to have stolen non-public traffic accident reports and to have used them to solicit clients.  The lawyer was also alleged to have moved firm income to his personal bank account as part of attempt to “obstruct and impede” and IRS investigation.

I’m always looking for ways to make my CLE presentations more interesting. I suspect we could have a robust moot court as to whether the lawyer’s issues with the criminal law support an allegation that the firm name – Legal Genius – is false or misleading.

“Like” To Win a Prize!

Early last decade, Kevin Ryan and I traveled around Vermont doing a presentation on legal ethics & social media.  Here’s a hypo we used:

  • Lawyer creates Facebook page for Firm.  Lawyer offers $25 to the first 25 friends who “like” or “share” the Firm’s page.  Discuss.

Now, given that it was early last decade, many in our audiences wondered why we were discussing something that would never happen in real life.

Alas . . . Kev, we told ’em so!

Late last decade, the North Carolina State Bar adopted 2019 Formal Ethics Opinion 6: Offering Incentive To Engage With Law Practice’s Social Networking Sites.  

(I didn’t notice the opinion until Sunday.  That’s when the Professional Responsibility Blog linked to the Louisiana Legal Ethics Blog’s post Top Ten Legal Ethics Developments in 2019.  Thank you Professors Bernabe & Ciolino!)

Anyhow, the NC opinion is straightforward.  A lawyer asked whether he could offer entries into a prize raffle to anyone who connected with his firm’s social media platforms.  The NC State Bar answered:

  • “No. If a social media platform will broadcast or display a user’s connection or interaction with Lawyer’s law practice social media account to other users of the platform, Lawyer may not offer prize chances in exchange for activity on or with his social media accounts.”

Per the opinion, the incentive program would violate Rules 7.2(b) and 7.1(a).

Rule 7.2(b) prohibits a lawyer from giving anything of value to someone to recommend the lawyer’s services.  Per the NC Opinion, free entry into a prize raffle is something of value, and a public “follow” or “like” is a recommendation.  By rule, the former cannot be given in exchange for the latter.

Rule 7.1(a) prohibits a lawyer from making a false or misleading communication about the lawyer’s services.  On this issue, the opinion says:

  • “The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange for recommending services is to ensure that recommendations for a lawyer’s services are based upon actual experiences or legitimate opinions of the lawyer’s service, rather than financial incentive. The displayed “like” of a law practice may indicate some prior experience with the law practice or the personnel associated with the practice upon which the user’s “liking” of the practice is based. Similarly, the credibility attributed to a particular social media account could be influenced by the number of account followers or subscribers. When the “like” or follow of a law practice’s social media account is based upon the user’s interest in a prize giveaway, the incentivized “like,” follow, or other interaction received by Lawyer and displayed on social media is misleading in violation of Rule 7.1(a).”

Vermont’s versions of Rule 7.1(a) and 7.2(b) are identical to North Carolina’s.

I don’t know how I feel about the opinion.

On one hand, I get it: the lawyer’s plan violates the rules as they are written.

On the other, like many of you, I use “likes” (and tools like Yelp & Amazon reviews) ALL THE TIME when trying to find a product or service provider. Am I influenced by “follows,” “likes,” and positive reviews?  Yes.

But I’m also aware that many of us “like” pages for no other reason than someone we know asked us to “like” their page.  Or maybe even to become eligible to get something for free.  That is, I’m not under any illusion that all my friends who like another friend’s business have hired that friend and received satisfactory service.

In my mind, the important question isn’t whether someone hired a service provider based on the provider’s likes or endorsements.  No, the important question is, once hired, did the client receive competent service at a reasonable price?

There you have it.  As always, be careful out there.

Image result for facebook likes"

Ghost Posts. Or are yours real?

To borrow a phrase from Larry David and Teri Hatcher, my blog posts are real and they’re spectacular!  Apparently not all law blogs can truthfully say the former.

Last month, the ABA Journal posted Ghostwriting for law blogs? Ethics are murkyIt’s a topic that’s new to me, one not raised in any of the ethics inquiries or formal disciplinary complaints that I’ve responded to and reviewed over the years.  The ABA Journal post includes insight from some of the more well-known voices on both professional responsibility and tech ethics.

But let’s back up for a moment.  You might be asking your self: “self, what is Mike even talking about?”  Good question.

The ABA’s post references this article that Kailee Goold posted to Ohio + Legal Ethics in June 2014. In it, Attorney Goold wrote:

  • “What are We Talking About?

    The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.”

Again, not an issue I’ve encountered.  But, an issue that raises ethics concerns.

Many law blogs are part of a lawyer’s website.  Websites communicate information about the services that the lawyer provides. Per V.R.Pr.C. 7.1,

  • “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading.”

The final sentence of Comment [1] is “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

Also, V.R.Pr.C. 8.4(c) prohibits a lawyer from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation.”

So, let’s say that a firm focuses on Practice Area.  And let’s say that the firm’s website includes a blog dedicated to Practice Area.  Does the firm violate the rules by paying a content developer to ghostwrite the posts and then posting them under the “byline” of one of the firm’s lawyers?

My gut reaction was “is it really THAT misleading?” But then I paused.  Because whenever we start asking whether something “is really THAT misleading,” we’ve established that it is, in fact, misleading.

In that it never arises, I don’t want to belabor the issue.  Suffice to say, if your website or blog includes posts that you paid someone else to ghostwrite, check out the articles referenced above.

Finally, I proof read by reading aloud.  Reading this blog about law blogs aloud reminded me of two things.

First, it reminded me of Elizabeth Kruska & Wesley Lawrence, perennial members of the #fiveforfriday Honor Roll in Legal Ethics.

Why them?

Because, like me, I know they’re fans of the second thing that reading today’s post aloud reminded me of: the world’s greatest law blog – The Bob Loblaw Law Blog.

See the source image

 

Specializing in Anonymity

Our nation’s long national nightmare is over: I’ve returned from my blogging hiatus.

Welcome to Monday!  I hope your summer is going well.  And, for those of you who followed the World Cup, let’s not forget that Scott Mapes predicted 3 of the final four.  Now that’s competence!

Today I’m going to discuss an oft misunderstood rule: Rule 7.4.

By way of background, last week, someone sent me copies of several pages from the “Lawyers” section of the Yellow Pages.  I’m not going to tell you the geographic area.  The sender chose to remain anonymous: no return address, no cover letter, no sticky note with a name.  The sender used a highlighter to call my attention to a few ads that indicate that various lawyer “specialize in” certain areas of law.

I assume the sender thinks the highlighted ads violate the rules.  Absent a cover letter, I don’t know.

I’m not a fan of anonymous complaints.  If you think another lawyer’s ad violates the rules, make a complaint or an inquiry and we’ll let you know.

Back to Rule 7.4.  The rule does not ban any & all use of “specializes” or its variants.  Here’s what the relevant sub-part says:

  • “(d) a lawyer shall not state of imply that a lawyer is certified as a specialist in a particular field of law, unless:
    • (1) the lawyer has been certified as a specialist by a named organization, provided that the communication clearly states that there is no procedure in Vermont for approving certifying organizations, unless the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law; and
    • (2) the name of the certifying organization is clearly identified in the communication.”

Comment [1] is instructive.  Per the Comment,

  • “[a] lawyer is generally permitted to state that the lawyer is a ‘specialist,’ practices a ‘speciality,’ or ‘specializes in’ particular fields of law, but such communications are subject to the ‘false and misleading’ standard applied in Rule 7.1 to communications concerning a lawyer’s services.”

In other words, if it’s true, Vermont’s rule appears to allow a lawyer to advertise that the lawyer specializes in a particular area of law.

Image result for saul goodman advertisement

 

Monday Morning Answers: #108

Good morning.  Friday’s questions are here.  The answers follow today’s honor roll.

As usual, I greatly appreciate the thoughts & stories that readers shared in response to the Friday intro.  Remember: people care, help is available.  If you (or someone you know) needs help, you can make a confidential inquiry of me, or, you can call the Vermont Lawyers Assistance Program.

Also, please remember this:  when it comes to helping someone else, don’t think of it as whether you have a professional obligation to make a report.  Think of it as helping another human being.  As I blogged last March

  • “In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel.  Some lawyers wonder whether there is a duty to report substance abuse and mental health issues.  Maybe.  Rule 8.3, the reporting rule, is HERE.But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

    Yes, I get it, we are reluctant to get involved.  Some of these might sound familiar:

    • It’s not my business.
    • I don’t know for sure, could’ve been she was having a bad day.
    • It helps my client that he isn’t doing his job.
    • The firm doesn’t need the bad publicity.”

When we’re dealing with a number like 108, those reasons for reluctance don’t cut it.

Honor Roll

Answers

Question 1

Which is different from the others?

  • A.  A contingent fee agreement
  • B.  An hourly fee agreement.   The rules do not require an hourly fee agreement to be in writing.  However, I’d encourage you to reduce it to a writing.
  • C.  A former client’s consent to a conflict
  • D.  Concurrent clients’ consent to a conflict

Question 2

There phrase “persons of limited means” appears four times in a single rule.

What’s the topic of the rule?

Voluntary Pro Bono Services – Rule 6.1

Question 3

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent.  In 2016, a the Supreme Court adopted a Comment to the rule.  The Comment makes it clear that lawyers may:

  • A.   accept cash to represent people charged with financial crimes
  • B.   not accept cash to represent people charged with financial crimes
  • C.   not disclose a client’s immigration status absent the client’s informed consent
  • D.   advise & assist clients on matters related to Vermont’s marijuana laws & regulations.

Rule 1.2(d).  The order adopting the Comment is here.

Question 4

There’s a rule that prohibits a lawyer from doing something, unless it’s:

  • to another lawyer; or,
  • to someone with whom the lawyer has a family relationship, close personal relationship, or prior professional relationship.

What’s the “something?”

Solicit employment by in-person, live telephone, or real-time electronic contact.   Rule 7.3(a).

Question 5

Vincenzo Leoncavallo was an attorney and judge in Italy.  In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival.  The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910.  It was then, 108 years ago,  that the first public radio broadcast took place.  The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son.  It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

The opera: Pagliacci

The character: Nedda.

Pagliacci

 

$1 Billion

Update: March 28 at 3:43 PM.  Avvo’s Josh King was nice enough to let me know that the $1 billion is only on tv ads.  Josh indicates that the amount spent on all attorney advertising is between $4 and $5 billion.

This year, it’s estimated that U.S. lawyers and law firms will spend over $1 billion on advertising.

$1 Billion.

You read that correctly.

The ABA Journal has the story here: Legal Advertising Blows Past $1 Billion And Goes Viral.

By comparison, in FY 2015, the Legal Services Corporation’s budget was $375 million.  (Editorializing? Maybe.  But, also, fact.)

Some of the lawyers/firms highlighted in the ABA Journal’s article:

  • an all-female firm that uses the catchphrase “Ever Argue with a Woman?
  • an attorney whose ads made him such a celebrity that a mother threw a birthday party for her 2-year-old in which the theme was…..the attorney.
  • a lawyer whose alter ego is the Texas Law Hawk.
  • the lawyer who originated the campaign “If you are injured in a car accident, call us immediately” and whose firm now spends between $30 and $40 million per year on advertising.

The article also includes an interesting recap of the history of lawyer advertising.  From the days when the ABA’s Canons of Professional Ethics banned nearly all advertising and, referring to lawyer advertising, included the ominous statement that “[t]he future of the republic, to a great extent, depends upon our maintenance of justice, pure and unsullied,” to the Supreme Court’s historic decision in Bates v. State Bar of Arizonato today’s landscape.

I’ve worked in the Professional Responsibility Program since 1999.  We’ve not received many advertising complaints. Maybe 5 or 6 in 18 years.

Vermont’s advertising rules are in Rules 7.1, 7.2, 7.3, 7.4, and 7.5.   It’s a violation to advertise a firm as being “injury experts” and “the experts” in particular areas of law.  It’s also impermissible to advertise as a “County’s Premier Criminal Defense Firm.”

I’ve never been a huge fan of the advertising rules.  I’m not against them, just not a fan.

The Association of Professional Responsibility Lawyers recommended that the ABA streamline its Model Rules on advertising.  The comment period closed on March 1.  I’m curious to see how the ABA responds.

$1 Billion.  On ads.

jimmy mcgill