Ohio Board of Professional Conduct Issues Advisory Opinion on Lawyer Internet Keyword Marketing

On June 11th, 2021, the Ohio Board of Professional Conduct issued an advisory opinion addressing the use of competitive keyword online advertising by lawyers on the internet. The advisory opinion provides some useful and important considerations for lawyers marketing in the digital age. Specifically, the Board considered whether a lawyer may participate in competitive keyword online advertising by purchasing a competitor lawyer’s name in order to prominently display the purchasing lawyer’s own advertising in online search results.

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Competitive Keyword Online Advertising

The opinion was prompted by a member of a law firm concentrating on personal injury law. The particular firm, like many, advertise through pay per click advertising on sites like google and yahoo. The lawyer reported that it is increasingly common for advertising sites to permit lawyers to bid on keywords so that when a potential client searches for that word, there firms name is displayed prominently at the top of the search results. The issue arose regarding the ability for firms to purchase and bid on the name or names of other competing law firms. In most instances, these same keywords can be purchased by multiple advertisers. As a result, consumers that search for a particular law firm may either intentionally or accidentally select a link for a competing law firm as a result of the use of this competitive keyword advertising. 

The Ethics of Competitive Keyword Marketing

The Board determined that while the use of competitive keyword marketing for keywords of a competitor may be acceptable under certain ethical rules, the use of this marketing tactic ultimately does likely violate ethics rules. To begin, the board found that it likeley does not trigger a violation of Prof.Cond.R. 7.1 which prohibits a lawyer from:

Making making a false, misleading, or non-verifiable communication about the lawyer or the lawyer’s services.

Per the advisory opinion, The rule governs all lawyer communications, including advertisements permitted by Prof.Cond.R. 7.2. The simple act of purchasing a keyword, including another lawyer’s name, does not communicate anything about the purchasing lawyer or his or her services. The purchase and use of a keyword in advertising does not result in the dissemination of any information about the lawyer or by the lawyer that is not already publicly available. Thus, so long as the information on the purchasing lawyer’s own website is not false, misleading, or non-verifiable, the communication complies with Prof.Cond.R. 7.1.

However, despite this assurance, the opinion goes on to say that the act of purchasing competitor’s name as a keyword may violate other ethics rules. A lawyer’s purchase of a competitor lawyer’s name for use in keyword advertising may constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Prof.Cond.R. 8.4(c). “Fraud” is defined in Prof.Cond.R. 1.0(d) as acting with intent to deceive and (1) making either an actual or implied misrepresentation of a material fact with knowledge of, utter disregard for, or recklessness, as to its falsity; or (2) knowingly concealing a material fact where there is a duty to disclose the material fact. Id

In the Board’s view, the 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 contrary to Prof.Cond.R. 8.4(c). The advertising lawyer is attempting to deceive the consumer into selecting the advertising lawyer or law firm’s website, as opposed to the intended lawyer or law firm. The effect of the purchase of the competitor lawyer’s or law firm’s name as a keyword is that the search result will return a list of law firms or lawyer websites with similar keywords and may display the purchasing lawyer’s website above that of the competitor lawyer. It 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, that lawyer has at the very least violated Prof.Cond.R. 8.4(a) by attempting to violate Prof.Cond.R. 8.4(c). See Geauga Cty. Bar Assn. v. Bond, 146 Ohio St.3d 97, 2016-Ohio-187.

A Higher Standard

In rendering this opinion, the Board noted that lawyers are to be held to a higher standard. The Board concluded that the proposed conduct may also be contrary to Prof.Cond.R. 8.4(h). Prof.Cond.R. 8.4(h) prohibits a lawyer from engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law. The Court has recognized a basic professional duty of honesty and integrity. Cincinnati Bar Assn. v. Blankenmeyer, 2006-Ohio-2038. “One of the fundamental tenets of the professional responsibility of a lawyer is that [the lawyer] should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the individual attorney is above reproach.” Cleveland Bar Assn. v. Stein, 29 Ohio St.2d 77, 278 N.E.2d 670 (1972). The use of another lawyer’s name, without consent, to increase traffic to one’s own website and to further one’s own financial and business interests displays a lack of professional integrity. It calls into question the lawyer’s trustworthiness, sense of fairness to others, and respect for the rights of others, including those of fellow practitioners.

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About the Authors: Sawan & Sawan is a multi-generational, family owned law firm practicing law in the areas of car accidents, truck accidents, insurance claims, personal injury, litigation and more. Our firm practices law in Ohio (Toledo, Columbus), Georgia, Michigan and Florida

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Dennis P. Sawan

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Licensed in Ohio and Georgia

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Christopher A. Sawan

Partner

Licensed in Ohio and Michigan

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