I’m not sure what to make of this one.
Last month, the Professional Ethics Committee for the State Bar of Texas issued Opinion 661.
The Committee concluded that
- “A lawyer does not violate the Texas Disciplinary Rules of Professional Conduct by simply using the name of a competing lawyer or law firm as a keyword in the implementation of an advertising service offered by a major search-engine company.”
What’s that mean?
- I interrupt this blog to remind you that I first posted on tech competence HERE . Now, back to your regularly scheduled programming.
In an oversimplified nutshell, it means this.
Let’s say I have a family law practice in South Burlington. Let’s also say that the most well-known and sought after family law attorney in Chittenden County is Rochester Flyte. How do I drive traffic to my website? I know: competitive keyword advertising. Using search engine optimization, I’ll buy keywords from Big Search Engine. I buy the keywords you’d expect:
- “divorce”
- “attorney”
- “lawyer”
- “family law”
- “Burlington”
- “Chittenden County”
- “Vermont”
- and all combinations of the above
Then, I buy one more phrase: “Rochester Flyte.”
So, when someone uses Big Search Engine to search “Rochester Flyte divorce attorney Burlington,” my website appears very high on the list of results, if not first.
Per the Texas opinion, I did nothing wrong. Eric Goldman is a Professor of Law at Santa Clara University Law School. He agrees.
The Texas Committee stated that in its opinion:
- “the use of a competitor’s name as a keyword in the factual circumstances here considered would not in normal circumstances violate [the rules]. The advertisement that results from the use of [Rochester Flyte’s] name does not state that [Mike Kennedy & Rochester Flyte] are partners, shareholders, or associates of each other. Moreover, since a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that there are advertisements presented on web pages showing search results, it appears highly unlikely that a reasonable person using an internet search engine would be misled into thinking that every search result indicates that a lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search.” Opinion 661, pp. 2-3.
In concluding that such conduct isn’t dishonest, deceptive, deceitful or fraudulent, the Texas Committee appears to have been swayed by the theory that “every other business allows it, so we should too,” noting that:
- “[i]n 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.” Opinion 661, p. 3.
Texas reached the opposite conclusion as North Carolina.
- Another interruption. Many of you know I like basketball. Well, I’m no fan of Carolina basketball. So any blog that compares opinions of the Texas and North Carolina state bars will include a reminder that Texas, led by one of my favorite coaches, Shaka Smart, took down UNC last December – the buzzer-beater portending another in Carolina’s future.
In 2010, the North Carolina State Bar issued Formal Ethics Opinion 14. In the Tar Heel state, where my father lives and to which I’m more and more attracted each day, it would be unethical for me purchase the “Rochester Flyte” keywords. Why? Well, as the NC State Bar concluded:
- “[i]t 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. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). 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.”
So, there you have it. I’m not sure what makes me hesitant about allowing Lawyer A to buy Lawyer B’s name as a keywords in an SEO marketing campaign. Indeed, people like Professor Goldman are far smarter & more informed than I on this issue (and probably many others).
Still, it just doesn’t feel right. The Texas opinion stresses that it’s okay as long as my website isn’t misleading or otherwise dishonest once visited by the person who searched “Rochester Flyte divorce burlington.”. But I tricked him into getting there….or did I?
Taking the interet out of it, imagine that I rented an office around the corner from Rochester Flyte’s. And that I put up a sign in front of his that said “law office around the corner.” Imagine that people searching for Flyte’s office followed the sign and ended up at my office. Would that be okay merely because I truthfully & honestly identified myself once they arrived?
Maybe. Maybe not. Or maybe it’s a terrible analogy. I don’t know.
Which is where I am on this issue: I just don’t know. To be clear, I haven’t exactly informed myself. Besides the Texas and North Carolina opinions, the only thing I’ve read on point is one entry Professor Goldman’s blog. I suppose that, in the end, Professor Goldman will sway me. After all, as a former point guard, I’m susceptible to being swayed by anyone associated with the school Steve Nash attended. But, for now, I don’t know what to think.
Which is what many of you have been saying for years.
Ethical Grounds 