Lawyers are always searching for a competitive advantage, so it may not surprise you to learn that this tactic has extended to search engine marketing, where some lawyers are buying keywords using their competitors’ names so that when a consumer searches for that competitor, the other lawyer’s ad will pop up.
Sound dodgy? Not according to the State Bar of Texas, whose Professional Ethics Committee found this strategy did not violate any ethics rules as long as a lawyer’s statements in the ads did not “contain false or misleading communications and must comply in all respects with applicable rules on lawyer advertising.”
In reaching that conclusion, the committee considered two rules that relate to attorney advertising:
Rule 7.01(d), which states that 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.”
Rule 7.02(a), which prohibits a lawyer from engaging in “a false or misleading communication about the qualifications or the services of any lawyer or firm.”
The committee found that under “normal circumstances,” an attorney who uses a competitor’s name does not violate either rule. The committee said that an ad resulting from the use of another lawyer’s name as a search engine keyword does not state that the two lawyers are partners, shareholders or associates, and consumers savvy enough about the Internet to search for a lawyer online should know that ads appear in search results.
In addition, the committee noted that it is unlikely that “a reasonable person … 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.”
The committee also found that the practice does not violate Rule 8.04(a)(3), which prohibits an attorney from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation.”
The Texas opinion opposes that of the North Carolina State Bar in 2012, which found the use of a competitor’s name in keyword advertising violated ABA Model Rule 8.4 regarding dishonest conduct. In 2013, the Florida Bar found competitive keyword advertising to be “inherently misleading,” but that opinion was later vacated by the Bar’s Board of Governors.