RI-385
November 18, 2022
SYLLABUS
An attorney may not utilize a keyword advertising campaign that involves using the name of another attorney, law firm or attorney’s or law firm’s tradenames without the express consent of the other attorney or law firm.
References: MRPC 7.1(a); 7.5(d), 8.4(b); RI-369, RI-276; TX Ethics Opinion 661; NJ Ethics Opinion 735; NC Ethics Opinion 14; OH Opinion 2021-04; Jim S. Adler, PC v. McNeil Consultants, LLC, 10 F.4th 422, 430 (CA 5, 2021).
TEXT
Because online advertising has become a popular and effective marketing strategy, attorneys and law firms often look for ways to maximize their internet presence. One such method is the use of keyword advertising via search-engine websites such as Google and Bing. Keyword advertising involves marketing activities in which an individual or business pays the search engine for the use of specific words or phrases that, in turn, will generate advertisements with links to the advertiser’s website when potential consumers include those words or phrases in an internet search. For example, a law firm may launch a keyword advertising campaign that utilizes words such as the name of the firm and/or one of its practice areas in an effort to direct consumers searching those words to advertisements containing a link to the law firm’s website. If keyword advertising activities succeed in generating a substantial number of “hits” – e.g., a potential customer clicks on the advertisement, then when a consumer’s internet search contains the firm’s purchased keywords, the law firm’s advertisements may appear at or near the top of the results in search engines such as Google and Bing.
The advent of keyword advertising has led some attorneys and law firms to engage in marketing activities that go beyond using their own names and tradenames and use their competitors’ names and tradenames as keywords without the consent of their competitors. In conducting this type of keyword advertising, attorneys and law firms seek to generate additional hits for themselves through the use of a competitor’s name, a practice that some marketers refer to as “leeching.” As an example: Attorney A launches a keyword campaign using the name of Attorney B or Attorney B’s law firm as keywords. If a consumer conducts an internet search for Attorney B’s law firm, depending on variables such as the cost of the keyword advertising campaigns and the words used in the consumer’s search, it is possible for Attorney A’s advertisement to appear alongside or even before Attorney B’s own site or advertisements. As a result, a consumer who has conducted an internet search specifically for Attorney B’s website may end up following an advertisement linked to Attorney A’s website instead.
Attorneys utilizing a keyword advertising campaign are often required to “bid” on the words or phrases they want to use in their campaigns and, therefore, the greater the number of bids on a particular word or phrase, the higher the cost to advertise using those words. Moreover, more than one advertiser can advertise with the same particular keywords, but the order in which their advertisements appear in search results often depends on how much the advertiser is paying for the keyword being used: the more the advertiser pays, the higher his or her advertisement appears in the search results. Due to these features, a lawyer may well have to “bid” an increased and substantial amount of money to use the lawyer’s own name in order to ensure a top internet search result.
“Leeching” in keyword advertising is becoming increasingly widespread, and Michigan attorneys and law firms question whether they may ethically utilize this strategy in competitive key word advertising. The committee concludes they may not.
As previously addressed by this committee, all forms of internet advertising, including domain names and internet addresses, are governed by the rules of professional conduct. RI-369; RI-276. Therefore, the use of online keyword advertising must also comply with the rules. MRPC 7.1(a) states, in pertinent part:
A lawyer may . . . use or participate in the use of any form of public communication that is not false, fraudulent, misleading or deceptive. A [lawyer’s] communications [with the public concerning legal services] shall not: (a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading . . . See RI-369.
In addition, MPRC 7.5(d) provides that “[l]awyers may state or imply that they practice in a partnership or other organization only when that is the fact.” Finally, pursuant to MRPC 8.4(b), “[i]t is professional misconduct for a lawyer to . . .engage in conduct involving dishonesty, fraud deceit, [or] misrepresentation . . .”
Other jurisdictions have considered whether attorneys may participate in competitive keyword advertising and have reached differing conclusions. Specifically, other states have disagreed as to whether keyword advertising is dishonest or deceitful and in violation of their respective jurisdiction’s version of MRPC 8.4(b).
For example, in 2016, the Texas State Bar Professional Ethics Committee concluded that, “given 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.” See Opinion No. 661 (July 2016).
The Texas committee stressed that in reaching its conclusion, it considered the fact that the attorneys’ advertisements, while generated as a result of the purchase of a competitor’s name, did not falsely state that the firms were affiliated in any way. Id. In addition, the committee was of the opinion it would be “highly unlikely that a reasonable person using an internet search engine would 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.” Id. Three years later, the New Jersey Advisory Committee on Professional Ethics reached the same conclusion, citing to the Texas opinion in support of its decision.
ACPE Opinion 735 (2019).
In contrast, North Carolina Formal Ethics Opinion 14 (2012) determined that keyword advertising was a violation of North Carolina Rule of Professional Conduct 8.4(c) because “[t]he 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, [and, therefore, is dishonest.].” Similarly, the Ohio Board of Professional Conduct concluded that “[t]he purchase and use of a competitor lawyer’s or law firm’s name as a keyword for advertising is an act that is designed to deceive an Internet user and thus [is] contrary to Prof.Cond.R. 8.4(c).” Opinion 2021-04 (2021). The board reasoned that “[i]t is possible that an unsophisticated consumer will not realize that the top search result is not that of the intended lawyer or law firm. Even when the consumer is not deceived into selecting the advertising lawyer’s website, the lawyer has at the very least . . . attempted to violate” the rules of professional conduct, which in and of itself is a violation of the rules. Id.
Contrary to the reasoning of the Texas opinion, the committee believes that the practice of using a competitor’s name or tradename as a keyword can be particularly confusing to consumers attempting to search for a specific lawyer or law firm, but the search results prominently display other attorneys’ advertisements. As a result of competitive keyword advertising or “leeching,” consumers searching for a specific lawyer or law firm may unwittingly follow advertising links to the sites of entirely different attorneys or law firms that are not associated with the specific lawyer or law firm for which consumers have searched. This is particularly true if the top search result is an advertisement for a competing attorney or law firm that purchased another attorney’s name or law firm name. This confusion can arise even if the advertisements are labeled as “ads” in the search engine results.
This committee agrees with the reasoning of the North Carolina and Ohio ethics opinions. The use of a competitor’s name or tradename without consent in competitive keyword advertising is inherently deceptive and a violation of MRPC 8.4(b). Although the advertisement itself may not be misleading pursuant to MRPC 7.1(a) or 7.5(d), the practice of using another attorney’s name, without consent, in order to increase traffic to one’s own website is in and of itself deceptive.1
CONCLUSION
For all these reasons, it is the committee’s opinion that an attorney may not ethically utilize an online keyword advertising campaign that involves the unauthorized use of the name of another attorney, law firm or tradename.2
1. The Mississippi Bar concluded that using another law firm’s “name, likeness, or trademarked materials without permission . . . would constitute false misleading and deceptive communication, and is not permissible” pursuant to Mississippi Rule 7.1 regarding advertising. Ethics Op. No. 264 (2022).
2. Although outside the scope of this opinion, it is worth noting that in some instances, competitive keyword advertising may violate copyright law. See Jim S. Adler, PC v. McNeil Consultants, LLC, 10 F.4th 422, 430 (CA 5, 2021).