Yes, a lawyer may use a keyword that includes the name of a competing lawyer–if the use of the keyword does not result in a false, misleading, or deceptive advertising practice.
Law firms competing in the Internet age have employed competitive keyword advertising to attract new clients. Competitive keyword advertising involves the use of a competing lawyer’s name as a keyword in Internet search engines to attract traffic to the advertiser’s website. For example, Lawyer Allie Able might pay a search engine to preferentially return a link to her website when a potential client searches for her competitor, “Lawyer Bobby Brown.” Such a search might result in Allie Able’s advertisements appearing preferentially as an “ad” above the search results.
This practice does not run afoul of the rules of professional conduct if the practice is not false, misleading, or deceptive. See Louisiana Rules of Professional Conduct, r. 7.2(C)(1)(A)-(C); see also Louisiana Rules of Professional Conduct, r. 8.4(c). The principal issue presented by competitive keyword advertising is whether and when the practice is “false or misleading.”
Relevant Louisiana Rules of Professional Conduct
The Louisiana Rules of Professional Conduct do not specifically address whether a lawyer may use a competitor’s name to trigger the preferential display of the lawyer’s own advertisement. Two rules, however, bear on the issue.
First, Rule 7.2 provides as follows: “(1) Statements About Legal Services. A lawyer shall not make or permit to be made a false, misleading or deceptive communication about the lawyer, the lawyer’s services or the law firm’s services. A communication violates this Rule if it: (A) contains a material misrepresentation of fact or law; (B) is false, misleading or deceptive; (C) fails to disclose material information necessary to prevent the information supplied from being false, misleading or deceptive.” See Louisiana Rules of Professional Conduct, r. 7.2(C)(1)(A)-(C)
Second, Rule 8.4(c) prohibits a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation.” Louisiana Rules of Professional Conduct, r. 8.4(c).
Competitive Keyword Advertising in Other Jurisdictions
Several jurisdictions have published advisory opinions regarding a lawyer’s use of a competitor’s name as an AdWord to trigger display of the lawyer’s own advertisement. There appears to be no consensus on the issue. Most jurisdictions that have considered the issue, however, find that it is generally not deceptive or misleading to use the name of a competitor lawyer when engaging in competitive keyword advertising. See The Prof’l Ethics Cmte. for the State Bar of Tx., Op. No. 661 (July 2016); see also South Carolina Bar Ethics Advisory Opinion, Op. No. 20-01; see In the Matter of Zachary Steven Naert, No. 27574 (S.C. Sep. 30, 2015); see NJ Advisory Committee on Professional Ethics, ACPE #735, p. 4 (June 25, 2019). However, even states, such as New Jersery, expressly permitting competitive keyword advertising recognize limits on its use:
A lawyer may not, however, consistent with the rules governing attorney ethics, insert, or pay the internet search engine company to insert, a hyperlink on the name or website URL of a competitor lawyer that will divert the user from the searched-for website to the lawyer’s own law firm website. 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. Such deceitful conduct violates Rule of Professional Conduct 8.4(c).
NJ Advisory Committee on Professional Ethics, ACPE #735, p. 4 (June 25, 2019) at 4.
In contrast to the advisory opinions discussed above, the North Carolina State Bar Association has condemned the use of competitive keyword ads by lawyers:
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.
Competitive Keyword Advertising in Louisiana
Considering the plain language of the Louisiana Rules of Professional Conduct and the persuasive authority discussed above, it is clear that a Louisiana lawyer may not do the following:
- make a false statement 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);
- make 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,
- engage 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).
However, it is less clear when the use of another lawyer’s name runs afoul of these standards. The following hypotheticals illustrate two ways in which a lawyer might employ competitive keyword advertising—one of which is likely permissible and the other of which is likely impermissible:
1. Al gets into a car crash and suffers personal injuries. He wants to hire a personal injury lawyer. He recalls hearing a radio commercial for Larry Lawyer. Al searches for “Larry Lawyer” on Google. In addition to returning search results with links to Larry Lawyer’s website, Google preferentially presents the following ad with hyperlinks to Colleen Competitor’s website: “Thanks for Searching for Us, You Have Found Your Personal Injury Lawyer. Click Here for a Free Consultation.” The clickable link leads the prospective client to Colleen Competitor’s website.
2. Bob gets into a car crash and suffers personal injuries. He wants to hire a personal injury lawyer. He recalls hearing a radio commercial for Larry Lawyer. Bob searches for “Larry Lawyer” on Google. In addition to returning search results for Larry Lawyer’s website, Google preferentially displays this ad: “Colleen Competitor Personal Injury Attorney, Get a Free Case Review by Clicking Here.” The clickable link leads the prospective client to Colleen Competitor’s website.
In the first hypothetical, the advertising lawyer, Colleen Competitor, has not distinguished herself from Larry Lawyer. Her advertisement is arguably “deceptive” and “misleading” because it fails to disclose that clickable link will route prospective clients to a website operated by a lawyer other than Larry Lawyer. 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. Google itself considers this practice–“destination mismatch”–to be misleading: “We 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 Dec. 24, 2020). For these reasons, the Louisiana Rules of Professional Conduct prohibit the false and deceptive advertising practice of misdirecting users to another lawyer’s website.
In the second hypothetical, however, the advertising lawyer has not deceived or mislead the potential client. The advertisement clearly distinguishes the advertising lawyer, Colleen Competitor, from Larry Lawyer. As a result, a reasonable consumer would not be misled.
Conclusion
The Louisiana Rules of Professional conduct prohibit a lawyer from using the name of a competitor in keyword advertising if the advertising lawyer fails to self-identify or if the link displayed surreptitiously redirects potential clients to the advertising lawyer’s website. This is so because rerouting the consumer to the advertising lawyer’s website is misleading and deceitful. To avoid such professional misconduct problems, a lawyer wishing to use competitive keyword advertising must clearly identify the lawyer’s name and refrain from suggesting an affiliation with the lawyer’s competitor.
