The Florida State Bar Association is considering an amendment to the state’s standards of professional conduct that would prevent the unauthorized use of a lawyer’s name in metadata or Google AdWords to drive organic search results to a different lawyer’s website. The proposal under consideration would add the following language to the Florida Rules of Professional Conduct:
(c) Using Names of Other Lawyers or Law Firms in Internet Advertising. It is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the Internet or other media. This prohibition applies regardless of whether the lawyer directly uses the other’s name or does so indirectly, such as through participation in a group advertising program.
Proposed Amendment to Florida Rule 4-7.13(c). This proposal is intended to prohibit a lawyer from purchasing key words misdirecting users who organically search for one lawyer’s name to another lawyer’s website. For the following reasons, it is my view that the Louisiana standards of professional conduct already prohibit this marketing practice as one that is “misleading” or “deceptive.”
The legal profession has received mixed messages regarding the propriety of using a lawyer’s name in metadata or Google AdWords to drive organic search results to another lawyer’s website. The Professional Ethics Committee of the State Bar of Texas has opined that a lawyer may use the name of a competing lawyer as a Google AdWord to generate favorable search results. See The Prof’l Ethics Cmte. for the State Bar of Tx., Op. No. 661 (July 2016).
Google’s AdWords advertising program allows Internet advertisers to purchase keywords that result in favorable and highlighted Google search results. In the opinion of the Texas committee, using another lawyer’s name as an AdWord is not “false or misleading” because:
- It does not involve the overt assertion that the advertising lawyer is a partner, shareholder, or associate of the other lawyer.
- A “reasonable person using an internet search engine” would not 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.”
- Because of “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.”
In contrast to this Texas opinion, a grievance committee of the North Carolina State Bar censured North Carolina lawyer David J. Turlington in 2013 for engaging in misleading and “dishonest” advertising. See In re David J. Turlington, III, No. 13G0121, N.C. Grievance Cmte., Wake County (Nov. 18, 2013). His use of other lawyers’ names in a keyword advertising campaign resulted in discipline. Said the committee:
[Y]ou . . . intentionally add[ed] inappropriate keywords to your Google AdWords advertising campaign; your inappropriate keywords consisted of other individual attorney names (including attorney nicknames), names of law firms, and names of judicial officials. . . . Your intentional inclusion of other attorneys’ names and law films in your keyword advertising campaign is dishonest and therefore violates Rule 8.4(c).
In addition, the committee found that Turlington violated Rule 8.1(c) (prohibiting false statement in disciplinary matters) because he lied to the grievance committee in defending against the allegations by contending that his inclusion of inappropriate keywords was “inadvertent” and the result of a “bulk-purchase of keywords suggested by Google.” Id.
Likewise, the North Carolina State Bar Association issued an advisory opinion in 2010 that reached the same conclusion as the committee in Turlington:
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.
This Practice is “Misleading” and “Deceptive” in Louisiana
Using another lawyer’s name to generate preferential search results is, in my view, an advertising practice that is deceptive and misleading. The professional conduct standards in virtually every state, including Louisiana, prohibit a lawyer from:
- making false statements of material fact to a third person, see ABA Model Rule of Prof’l Conduct r. 4.1(a); La. Rules of Prof’l Conduct r. 4.1(a) (same);
- making a “false or misleading communication about the lawyer or the lawyer’s services,” see ABA Model Rule of Prof’l Conduct r. 7.1; La. Rules of Prof’l Conduct r. 7.2(c) (prohibiting any “false, misleading or deceptive communication about the lawyer, the lawyer’s services or the law firm’s services”); and,
- engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation,” see ABA Model Rule of Prof’l Conduct r. 8.4(c); La. Rules of Prof’l Conduct r. 8.4(c) (same).
Surreptitiously directing web traffic to another lawyer’s website is deceptive and misleading.1 It is the electronic equivalent of putting up a road sign directing potential clients to “Turn Here for Lawyer A,” only to funnel them unwittingly into the parking lot of Lawyer B.
Even Google itself brands the practice to be a violation of its own policies. Google notes that “[w]e don’t want users to feel misled by ads that we deliver, so we strive to be clear and honest, and provide the information that users need to make informed decisions.” Indeed, Google flatly prohibits “destination mismatch,” which includes advertisements “that don’t accurately reflect where the user is being directed.” See Google Destination Requirements at https://support.google.com/adwordspolicy/answer/6368661?hl=en&ref_topic=1626336 (visited Mar. 20, 2018).
For these reasons, and for those articulated by the North Carolina Bar Association, the Louisiana Rules of Professional Conduct prohibit the false and deceptive advertising practice of misdirecting users who organically search for one lawyer’s name to another lawyer’s website.
- I disagree with the analysis of the issue by the Texas Professional Ethics Committee in Opinion Number 661. That analysis notes that the advertising practice in question does not include an “overt” assertion of association between the lawyer searched for and the lawyer identified by the search. True, but it certainly involves a “covert” act of misdirection. Further, that analysis notes that the practice is in “general use by all sorts of businesses of names of competing businesses.” Perhaps, but lawyers are regulated differently (and more restrictively) than nonprofessional “competing businesses.” ↵