Legal marketing has gone digital, and law firms are getting creative with their online strategies. One increasingly common tactic: using competitors’ names in Google ads – a practice known as competitive keyword advertising.
Here’s how it works: A lawyer pays Google to show their ad when someone searches for a competitor’s name. Say you’re looking up “Lawyer Bobby Brown” – you might see an ad for Lawyer Allie Able pop up first in your search results, even though that’s not who you were looking for.
The practice recently made headlines when the Ninth Circuit Court of Appeals weighed in in the case Lerner & Rowe PC v. Brown Engstrand & Shely LLC. See Lerner & Rowe PC v. Brown Engstrand & Shely LLC, No. 23-16060 (9th Cir. Oct. 22, 2024). The case pitted two Arizona personal injury firms against each other after ALG bought “Lerner & Rowe” as a Google Ad keyword. When potential clients searched for Lerner & Rowe, they’d see ads for ALG instead.
The court found there was no trademark infringement. Their reasoning was pretty straightforward – since ALG’s ads were clearly labeled and didn’t actually use Lerner & Rowe’s name in the content, there wasn’t enough evidence that consumers were being confused. This basically means that as long as you’re upfront about who you are and don’t try to pass yourself off as your competitor, using their name as a keyword is fair game. But what about the ethics of it all? Several state bar associations have weighed in, including North Carolina and Texas, and they’re generally okay with it – with some common-sense ground rules. See North Carolina State Bar (2010 Formal Ethics Opinion 14); Texas State Bar (Opinion 661). Your ads need to be honest, clearly labeled as ads, and follow all the usual advertising rules. You also need to be crystal clear about who you are and not try to trick anyone about your relationship (or lack thereof) with the firm they were actually searching for.
While Lerner doesn’t directly tackle professional conduct rules, it does suggest some best practices. Be upfront about who you are. Don’t try to mislead anyone about your connections to other firms. Make sure you’ve got all the right disclaimers for your jurisdiction. Keep an eye on your ad content to make sure it stays compliant. And remember – if you’re practicing in multiple states, you need to juggle different rules. As online marketing keeps evolving, so will the ethical guidelines, so stay alert and adaptable.
