Paid search for attorneys is an area where firms must tread carefully and review both statutory and ethical implications before taking action. While a lawyer should never delegate his or her duty to perform a thorough review, working alongside an experienced and trusted legal marketing company can decrease the likelihood that an ethical violation or other wrong-doing will occur. However, as you will see, it is essential to note that the lawyer is the most familiar with the laws and ethical obligations imposed in his or her jurisdiction or jurisdictions. Let us take a look at a fairly widely-reported example of rather under-handed techniques and the respective state’s bar association’s actions.

New York: But I Searched for Smith & Jones?

As first reported on the New York Personal Injury Blog, a marketer from a firm, who will remain unnamed on this blog, contacted the owner of the NY Personal Injury Blog. Their pitch was simple: they would avoid those pricey $100+ per-click keywords and yet still provide targeted and appropriate traffic through AdWords. Did this company have an inside track with Google? Hardly.

What this marketing firm intended to do was so simple that, at first thought, the simplicity masked the risky and rather insidious nature of the scheme. They propose to purchase the names of prominent personal injury lawyers in the area and drive traffic to the site.

However according to the attorney-blogger of the New York Personal Injury Blog marketing scheme of this type may violate New York’s Civil Rights Law §50 & §51. The former reads, “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

Wisconsin: Ethics rules Aside, This Scheme Might be Crime Depending on Your Jurisdiction

A situation similar to the one in New York occurred between two top personal injury firms in Wisconsin. While Forbes has reported on the matter in some detail, the basic facts are as follows. A personal injury firm, Cannon & Dunphy, successfully bid on the Google search terms “Habush” and “Rottier” – the names of the partners of the prominent personal injury firm Habush, Habush & Rottier. By successfully bidding for the terms, Cannon & Dunphy ensured that when an individual searched for their competitor, a Cannon firm advertisement would appear at the top of the page as a sponsored ad.

Wisconsin’s publicity law, Wisconsin Stat. § 995.50(1), allows an individual to bring suit for privacy violations. It is based on the New York law and it enumerates 4 ways in which one’s privacy may be violated. However in this action only part (2)(b) was in controversy. The particular invasion of privacy provision reads:

“The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.”

The decision turned on the meaning of the word ‘use’ as applied to the above provision. Habush advocated for a broad reading of the word use where the only things not covered would be incidental items where the party does not seek benefit. In contrast, Cannon advocated for a view of the word use that only included actions that would be visible to the public. The court found both interpretations of the term to be reasonable. Because the Court found both interpretations to be reasonable, it then was tasked with selecting the more reasonable interpretation.

The court decided that the more reasonable of the interpretations was that of Cannon. However perhaps hinting at how close of a call it was in Wisconsin, the court stopped short of crafting a comprehensive rule. It explicitly limited the decision to, “the particular ’non-visible’ type of use at issue here”. The court analogized Cannon’s strategy to be similar to opening a physical Cannon & Dunphy law office next door to an already established Habush office. However one should tread carefully since the court found it necessary to limit the applicability of its own decision.

What Can we learn from the Court’s Analysis?

While these matters should be not be relied on in other jurisdictions, there are perhaps a few broad lessons that we can draw. They include:

1. Google is not the law or the Model Rules of Professional Conduct – While it is true that use of Google’s Adwords for law firms is conditioned upon acceptance of their Terms & Conditions, this contract is not the law of the land. Further this contract does not contemplate the heightened ethical responsibilities of an attorney. Just because Google allows it does not mean that the process has been vetted. However judging from Google’s policies, it appears that it does not monitor the use of personal names.

2. If it sounds too good to be true, it probably is – Digital marketing, like any other business transaction, is based on trust. If the company cannot provide references or explain their process but promises the world, think before you sign a lengthy contract. Look for established players in the industry – regardless of their size – when selecting or comparing firms. Their practices and pricing can guide you as to what is acceptable and reasonable in the industry, however you should still perform your own due diligence.

3. Don’t expect good things to come from trading on the names of your colleagues and fellow members of the bar — While we can all trade stories about the attorney who played fast and loose with ethic rules, there is typically one common thread: it falls apart in the end. If you are using questionable tactics, expect others to begin to target you. Furthermore, if your less than acceptable practices are pulling business away from other firms, do not be surprised if an complaint—ethics, or otherwise – is filed against you.

4. These matters turned on publicity rights, not trademark law or ethics rules – The Wisconsin matter and hypothetical N.Y. violations are based on publicity law and not trademark law. Drawing from the reasoning advocated within Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. April 3, 2009), a trademark use can occur even if the use is invisible. If these matters had been brought under trademarks grounds, there is a significant likelihood that a violation may have occurred. Additionally, ethics violations may also be implicated including committing false and deceptive conduct.

Your Reputation and, Depending on Your State, Your License Could be at Risk

Before you take any action online, check with your jurisdiction’s laws, regulations and ethics rules first. While attorneys appear to be permitted to purchase competitor’s keywords in Wisconsin and Florida, North Carolina considers the practice to be an ethical violation.

Craig Toncic is an attorney and part of the legal marketing team at Majux.