(The Law) Catching up with technology..
Google Ads populates links that are paid for, and that appear above organic results. These ads account for more than 85% of all clicks. A lawyer practicing criminal law might pay Google to have a link to its website appear when an internet user searches for criminal law related terms, but what if they pay Google to have a link appear when someone types in the name of one of their competitors?
A small, a two-lawyer Law Firm from New Jersey, was named in a trademark infringement lawsuit filed by a P.A. Firm of 42 lawyers in late 2018, that made me rethink the way I Advertise for Attorneys.
The lawsuit alleged that the small New Jersey Firm used Google Advertising to divert potential clients away from the mid-sized P.A. Firm by using their name to attract clients and then re-directed them to the smaller Firm’s website.
Attorneys are held to a higher standard of professionalism because of the role they play in our society and in the courts. Attorneys are expected to follow the same Google Advertising Guidelines and state laws that any other business is expected to follow when advertising online. In addition, attorneys must also follow the Rules of Professional Conduct that govern Attorney advertising, set forth by the American Bar Association at the federal and state level.
If an attorney fails to abide by the ABA Rules of Professional Conduct, they might face disciplinary actions or sanctions. However, even with the restrictive nature of the Bar Rules, you can still advertise in an effective manner online by following the letter and spirit of the rules.
Google states: “Google will not investigate or restrict the use of trademark terms in keywords, even if a trademark complaint is received.” This does not mean that you are free to bid on your competitors names without consequence, even if you aren’t misleading clients in the Ad copy itself. Many Law Firms believe that you can legally bid on a competitor’s name, likeness and trademarks, or are unaware that the advertising agency or person managing their Google Ads is bidding on their competitors name.
The lawsuit stated: “Upon information and belief, defendants have purchased plaintiffs’ names and numerous variants thereon as Google Ads in order to divert Plaintiffs’ potential clients to Defendants,” referring to the Lanham Act for false advertising and false association.
State Bar regulations govern Digital Advertising rules for Attorneys and are specific to each state. Every industry must follow Google’s Advertising Guidelines. However, Attorneys must also follow the Rules of Professional Conduct setup by the state Bar.
In this case, the defendant used the larger law firm’s name in ad copy. Presuming this claim is true, it would appear to be a calculated attempt to deceive potential clients. The court agreed and issued a temporary restraining order and preliminary injunction banning the defendant from marketing in that way on Google Ads.
The tactic of bidding on a competitors name is called “Conquesting”. And while this tactic may not necessarily be against Google’s Advertising Guidelines, it could still open up a Law Firm to potential legal ramifications if it infringes upon Trademark law, or goes against the Rules of Professional Conduct put in place by the State Bar Association. This is not the same thing as putting a competitors name or other information into the Ad itself, which most lawyers know is not only unethical, but also illegal and could lead to being disbarred if convicted. I’ve noticed many people don’t understand, or make clear this distinction.
The American Bar Association (ABA) in Rule 7.1 states that, “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 considered as a whole not materially misleading.”
Furthermore, the ABA states in Rule 8.4 (c) that “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation . .”
Each state bar association will have similar rules to those provided by the ABA, and they will also have rules that apply to their own particular jurisdiction. Currently, not all state bars have provided an opinion on whether or not it is unethical to bid on a competing attorney’s name in ads. However, some states have looked at the practice and declared it to be unethical.
For example, Florida issued Advisory Opinion A-12-1 that states that using “false, deceptive or misleading [meta tags] is prohibited” and that this ban also applies “when lawyers purchase advertising on a search engine keyed to specific words or phrases.” North Carolina also says bidding on a competitor’s name is unethical.
A 2010 North Carolina Formal Ethics Opinion 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. 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.”
Based on this case, I would say using a competitor’s name to gain business places a firm and its attorneys at risk of legal and ethical complaints, something that can destroy a law firm’s reputation.
With that said, I think this is a clear case of the Law needing to catch up with Technology. How would this be any different than a Law firm placing a billboard ad directly above an office building where a competing Law Firm resides? As far as I know that’s completely legal, and In theory, the placement of such a billboard would surely siphon some percentage of business in a debatably similar fashion.
I don’t make the rules, I just follow them, and so should your Law Firm. This is why it’s critically important that your Law Firm works with an advertising agency that understands state and federal advertising Law for attorneys. If you’re worried that your Law Firm may be at risk for Trademark infringement, or are unsure if the advertising agency you have hired is deploying this tactic either purposely or unwittingly, reach out to me and I’ll be happy to consult you and provide some professional insight.
This article has been brought to you by SYZYGY, a full service Digital Advertising & Analytics Agency, working exclusively with Attorneys and Law Firms.
Brandon Speagle PPC Manager, Author, MDDS SYZYGY — Google Ads For Lawyers