The Battle Over Competitive Keywords in Google Adwords Marketing

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You will have noticed that sometimes when you search for something on Google, you’ll see a rival to whatever you’re searching for pop up first in the search results. That’s because companies can advertise their wares on Google Adwords by including competitor keywords. So, when someone searches for, say, McDonalds, an entry for Burger King might be the first result. It is perfectly possible for attorneys to do this–all you need to do is set up your Adwords campaign to bid on and target your law firm competitor’s name(s).

The real question is whether it is permissible for attorneys to do so, given the raft of ethics rules that govern lawyer advertising. The answer? It depends on where you live.

Back in 2012, North Carolina adopted a formal ethics opinion that prohibits a lawyer from “select[ing] another lawyer’s name as a keyword for use in an Internet search engine company’s search-based advertising program.” The opinion found that doing so violated North Carolina’s Rules of Professional Conduct–specifically Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” North Carolina found that dishonest conduct includes conduct that is unfair or is not straightforward, and that by functionally “purchasing” the rights to another firm’s name in the Google search met that criterion.

In 2013, Florida indicated it intended to follow the North Carolina approach and proposed an ethics opinion banning competitor keyword searching. It didn’t pass, so the status quo in Florida is that it is not prohibited, but there is no ringing endorsement of the practice either.

Last month, Texas went a good deal farther than Florida and issued an ethics opinion affirmatively endorsing the practice and explicitly rejecting the North Carolina approach. First, Texas looked at the issue through the lens of Rule 7.01(d) (prohibiting attorneys from falsely holding themselves out as partners of another attorney) and Rule 7.02(a) (prohibiting false or misleading communications about your firm’s qualifications.)The Texas State Bar’s Professional Ethics Committee found that the practice doesn’t violate either of those rules, in large part because people who are searching the internet for legal services are presumed to be smart enough to understand how Google searches work.

[A] person familiar enough with the internet to use a search engine to seek a lawyer should be aware that there are advertisements presented on web pages showing search results, it appears 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.

Texas also noted that the way North Carolina had interpreted Rule 8.4(c) (which is functionally the same as Texas Rule 8.4(a)(3)) was incorrect, again in large part because people searching the internet know how to search the internet.

[G]iven 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.

Basically, Texas’s take can be boiled down to this: if someone is well-versed enough in the mechanics of a Google search to search for law firms, they’re well-versed enough in the practice of competitive keyword searching to understand that when searching for Lawyer A, if Lawyer B also comes up in the search, that doesn’t mean Lawyers A and B are partners.

And so another arcane and archaic lawyer advertising barrier falls, at least in Texas, and hopefully to be repeated elsewhere very soon.

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