Lawyers are subject to strict ethical rules. Ethical rules govern not only an attorney’s representation of her client, but also how attorneys communicate with the general public. Indeed, the Model Rules of Professional Conduct contain specific rules addressing “communication concerning a lawyer’s services.” Attorney marketing is among the types of communication these rules cover.
Given that there are very real ethical concerns with attorney marketing in general, it is no surprise that ethics panels are being asked to weigh in on lawyers’ use of search engine to attract new clients. One area that has been the topic of recent discussion is the permissible use of keywords in online marketing.
Keywords are at the heart of many online marketing strategies, both for purchased ads as well as for search-engine optimization (SEO) strategies. In terms of SEO, it is common practice for marketers to use keywords to drive traffic to a law firm’s website. Typically, a firm hoping to attract new clients would use keywords to target clients dealing with a specific legal issue that the attorney handles. A keyword may be a general practice area, such as criminal defense law; an accident type, such as car accidents; or a specific legal question, such as “writing your own will.”
Recently, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued an opinion regarding lawyers’ use of keywords in online marketing. The opinion held that an attorney could purchase a sponsored search keyword in a competing lawyer’s name, so long as doing so does not otherwise violate the Rules of Professional Conduct. In this example, Lawyer A purchases the keyword “Lawyer B” to increase the rank of Lawyer A’s page when a prospective client searches for “Lawyer B.”
The Committee considered whether purchasing a keyword violated three potentially applicable rules. Under Rule 7.1 “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.” However, the Committee determined that purchasing a keyword does not constitute a “communication.” Thus, the Committee found the rule did not apply.
The finding that a keyword purchase is not considered communication also guided the Committee’s finding that purchasing a keyword does not violate Rule 1.4. Rule 1.4 discusses a lawyer’s communications with her clients and mandates that a lawyer “shall inform a prospective client of how, when and where the client may communicate with the lawyer.” The Committee explained that “there is no interaction, much less communication, between the
lawyer who purchases a competitor lawyer’s name as a keyword and the person searching on the internet”
Finally, the Committee considered whether the purchase of a sponsored keyword in a competitor’s name violated Rule 8.4, which precludes an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Thus, the opinion stands for the proposition that it is not a violation of the rules governing attorneys’ advertising for a lawyer to use another attorney’s name to boost their own search engine rankings. In analyzing the issue, the Committee looked to other jurisdictions, noting that there is a split among states. For example, Texas and Wisconsin allow sponsored keyword purchases in a competitor’s name. However, North Carolina has found that such conduct is “dishonest” and in violation of Rule 8.4.
In agreeing with the approach of Texas and Wisconsin, the Committee explained that purchasing a sponsored keyword in a competitor’s name will not prevent the competitor’s name from also coming up in the search. In addition, the Committee noted that there would be a distinction in that the search result of the lawyer who paid for a keyword search would appear under the “sponsored links” heading, whereas the competitor’s name would appear in the organic results.
The Committee was more concerned about an attorney purchasing a link to their own website on the name of a competing attorney. In this situation, a prospective client clicks on a link to “Law Firm X” but is taken to “Law Firm Y.” The Committee determined that “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.” Not surprisingly, the Committee found that this type of marketing tactic crossed the line into being “fraudulent, deceptive or dishonest” and violated Rule 8.4.
The takeaway from the Committee’s most recent opinion is that lawyers can purchase search results in a competing lawyer’s name to boost their Google rankings. However, an attorney cannot divert traffic by purchasing a link on a competing lawyer’s name. Of course, there are two important things to keep in mind about the opinion. First, it only represents the position of the New Jersey Advisory Committee on Professional Ethics, and each state may view the issue differently. And second, that the two situations raised in the opinion only scratch the surface of the potential issues that can arise in online attorney advertising. By working with a reputable online legal marketing agency, attorneys hoping to make the most of their online advertising strategy can do so within the bounds of the ethical constraints of the profession.
Tony Chiaramonte is a content developer for law firms at Custom Legal Marketing.