ETHICS DOCKET NO. 2022-02

MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2022-02

Internet Advertising: Competitive Keyword Purchases

QUESTION PRESENTED 

Is it ethical for an attorney engaged in online advertising to purchase the name of another attorney or law firm as part of a keyword internet marketing campaign?  

CONCLUSION

 

It is the majority opinion of this Committee that the purchase of a competitor’s name as a keyword in an internet marketing campaign violates the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”), Rule 8.4.  

 

We wade into these uncertain and murky waters with the knowledge and understanding that internet advertising and search engines are an ever-changing sea. With that context in mind, we will endeavor to describe the current seascape.  

Internet search engines typically produce at least two types of search results for internet searchers: organic and non-organic. Organic results are a list of links to websites in ranked order based on complex algorithms developed by the search engine provider. Non-organic results are the product of paid advertising, and are supposed to be clearly marked; they may appear at the top, in between organic results, or on the side and bottom of organic results. There is also a third tool used by search engines to direct users to certain results which is referred to as boosting or optimizing results defined as “the practice of optimizing web pages in a way that improves their ranking in the organic search results.” (emphasis added).[1]  

When an internet user conducts a search containing certain keywords, links to the websites of paid advertisers and boosted results are generally more likely to appear and/or will appear higher in the result than they otherwise would. Paid advertising results are required to be marked in some way and identified as “Ads” or “Sponsored” results.[2]

In some cases it is clear that the results are  paid or sponsored, and in other cases it is more difficult to tell whether the links in the search results are organic or represent a paid or boosted result. Boosted or Optimized results are not marked or distinguished in any way, and may appear to be regular organic results.  At least one study found that 62% of those surveyed were not aware of a distinction between paid, boosted and unpaid results.[3] The same survey found that only about 1 in 6 searchers say they can consistently distinguish between paid and unpaid results. Id. Research also shows that most consumers are unaware of the fact that results that appear organic may be vertically boosted by payments and may not be marked as advertising in any way.[4]  

COMPETITIVE KEYWORD ADVERTISING 

 

Keyword advertising involves bidding or registering certain keywords or phrases with a particular search engine in order to have an advertisement or listing for the purchasing lawyer’s or firm’s website appear when those search terms are used, or in order to boost indirectly the purchasing lawyer’s or firm’s website in the organic results. The specific practice of purchasing a competitor’s name as a keyword is referred to as “Competitive Keyword Advertising.”  
You indicated that some lawyers in Maryland are now engaged in Competitive Keyword Advertising and requested a formal opinion from the Maryland State Bar Association’s Committee on Ethics as to whether it would be ethical for you, as a Maryland attorney, to take part in Competitive Keyword Advertising as part of your firm’s internet marketing strategy.  

APPLICABLE RULES 

 

MARPC Rule 7.1, Communications Concerning an Attorney’s Services, provides that: 

An attorney shall not make a false or misleading communication about the attorney or the attorney’s services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;  (b) is likely to create an unjustified expectation about results the attorney can achieve, or states or implies that the attorney can achieve results by means that violate the Maryland Attorneys’ Rules of Professional Conduct or other law; or (c) compares the attorney’s services with other attorneys’ services, unless the comparison can be factually substantiated.  (Emphasis added). Comment [1] specifies that the Rule “governs all communications about an attorney’s services, including advertising and direct personal contact with potential clients permitted by Rules 19-307.2 (7.2) and 19-307.3 (7.3). Whatever means are used to make known an attorney’s services, statements about them should be truthful.” (emphasis added).  

 

MARPC Rule 7.2 provides that, provided they comply with rules 7.1 and 7.3, an attorney may pay for advertising or written communications permitted by this Rule. Any communication made pursuant to 7.2 shall include the name of at least one attorney responsible for its content. (Emphasis added; 7.2(d)).[5]  

MARPC Rule 8.4 (c) declares that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation….” Md. Rule 19-308.4 (c). The Supreme Court of Maryland (formerly the Maryland Court of Appeals) has interpreted 8.4 to encompass a “broad universe of misbehavior” including conduct “evincing a lack of honesty, probity or integrity of principle” or “[a] lack of fairness and straightforwardness…. Thus, what may not legally be characterized as an act of fraud, deceit or misrepresentation may still evince dishonesty.” Att’y Grievance Comm’n v. Thomas, 440 Md. 523, 555, 103 A.3d 629 (2014).[6] See also Att’y Grievance Comm’n of Maryland v. Dore, 433 Md. 685, 708, 73 A.3d 161, 174 (2013)  (whenever an attorney knowingly makes a false statement, he necessarily engages in conduct involving misrepresentation).  

DISCUSSION AND ANALYSIS  

In Maryland, the contents and manner of advertising are covered by 7.1, and 7.2 and are guided by the rules themselves as well as the compelling interests described in the comments. With respect to manner and content of advertising, the rules are not prescriptive so long as “[w]hatever means are used to make known an attorney’s services, statements about them should be truthful” and any advertising communication must “include the name of at least one attorney responsible for its content.” Both of these rules therefore address not the means of advertising, but its content. As such, so long as the text of the link that appears in the search as well as the linked website are clearly marked with the name of the lawyer responsible for the advertising and the name of the responsible firm, and so long as text that appears is not otherwise misleading, rules 7.1 and 7.2 would not expressly prohibit the use of Competitive Keyword Advertising.  

The decision to purchase another attorney or firm’s name and have your name or web page appear in advertising proximate to the organic search results, or higher in what appears to be an organic search is also attorney conduct which is governed in part by MARPC 8.4. MARPC 8.4 requires that the attorney not engage in any practices or conduct that involves dishonesty, fraud, deceit or misrepresentation. As noted above, in Maryland all that needs to be shown to find a violation is that there was a lack of honesty, probity or integrity, a lack of fairness and straightforwardness, or a false statement or misrepresentation that is dishonest; intent to deceive is not required. See Att’y Grievance Comm’n of Maryland v. Dore, 433 Md. 685, 708, 73 A.3d 161, 174 (2013).  

Maryland has not previously addressed whether or not Competitive Keyword Advertising that directs searches for a competitor’s name or firm to another lawyer’s webpage violates 8.4, and none of the comments to 8.4 specifically address it. However, the issue has been considered by several other state bars.[7]  

In an early opinion on the subject, the North Carolina State Bar opined that “[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. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.  North Carolina State Bar 2010 Formal Ethics Opinion 14, April 27, 2012, Use of Search Engine Company’s Keyword Advertisements.[8]  

In contrast, the Texas State Bar Professional Ethics Committee found no rules violation where a lawyer would have his name or firm name appear in a “sponsored” or “ad” area when a potential client searches for a competing lawyer or firm by name. State Bar of TX Prof. Ethics Committee Op. No. 661 (July 2016).[9] Finding that “[a] lawyer does not violate the Texas Disciplinary Rules of Professional Conduct by simply using the name of a competing lawyer or law firm as a keyword’ so long as “[t]he lawyer’s statements included in this advertising program must not contain false or misleading communications” and “comply in all respects with applicable rules on lawyer advertising.”  

The New Jersey’s Advisory Committee on Ethics considered the question of whether a lawyer may (1) purchase a competitor lawyer’s name as a keyword in order to have the lawyer’s own law firm appear in the search results when a person searches for the competitor lawyer by name; and/or (2) pay a search engine or otherwise insert a hyperlink on the name of a competitor lawyer that will divert the user from the searched-for website to the lawyer’s own law firm website. NJ Supreme Ct. Adv. Committee on Prof. Ethics Op. No. 735 (June 2019). The Committee opined that that the first scenario did not violate 8.4, but the second would; surreptitiously redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website, and such deceitful conduct violates Rule of Professional Conduct 8.4(c).  

In response, the New Jersey Bar Association recommended that a comment be added to Rule 8.4 stating that:     

It is a violation of RPC 8.4(c), representing dishonesty, fraud, deceit, or misrepresentation, for a lawyer to purchase another lawyer or law firm’s name as a keyword search term from internet search engines to use in the lawyer’s own keyword advertising. The purchase of the recognition and reputation associated with a lawyer’s name or law firm’s name to direct consumers to another lawyer’s website is neither fair nor straightforward and is misleading.

Letter from New Jersey Bar to New Jersey Superior Court, Re: In re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics/Docket No. 08339, February 17, 2022.[10] 

The Ohio Board of Professional Conduct has found 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 contrary to Prof.Cond.R. 8.4(c).” Ohio Bd. Prof. Cond. Opinion No. 2021-04 (June 11, 2021). The Board concluded that a lawyer’s plan to bid on keywords containing the names of competing firms may lead to a search result that places the purchasing lawyer’s website above that of the competitor and could mislead an unsophisticated consumer. As such, the Board concluded that the practice would violate 8.4 and was prohibited. The Ohio Opinion goes on to conclude that “[t]he 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 interest 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.” Similarly, last year the Mississippi Bar concluded that an attorney was not permitted to employ a lead generator service designed to generate potential clients with advertising using another attorney’s/law firm’s name, finding it unethical. Mississippi Bar Ethics Op. No. 264 (April 7, 2022).[11]

After reviewing these opinions, as well as the language of the Maryland Rules and case law interpreting them, the Committee’s majority agrees with the New Jersey Bar Association, the Ohio Board of Professional Conduct, and the North Carolina State Bar that the purchase of a competitor’s name as a keyword violates Rule 8.4. We reach this conclusion because the language of MARPC Rule 8.4 is broad, and the Supreme Court of Maryland (formerly Maryland Court of Appeals) has found that 8.4 is triggered by behavior that fails to rise to the level of fraud or deceit.  
Conduct that evidences a lack of honesty, probity or integrity, lack of fairness and straightforwardness or misrepresentation will suffice.  

The core reason for purchasing as a keyword the name of another lawyer or law firm is to appropriate for oneself the earned reputation of another lawyer or firm in order to further one’s own financial interests. In the view of the majority of this Committee, such conduct is inherently deceptive, especially to the unsophisticated consumer, evidences a lack of professional integrity and calls into question the trustworthiness of the lawyer who does so.  

We hope this response is helpful. Thank you for contacting the Committee on Ethics.

Very truly yours,

MSBA COMMITTEE ON ETHICS

FOOTNOTES:

1 Misplaced trust? The relationship between trust, ability to identify commercially influenced results and search engine preference, Journal of Information Science, May 14, 2021, https://journals.sagepub.com/doi/pdf/10.1177/01655515211014157  

2 FTC Sample Letter to Internet Providers, June 24, 2013, https://www.ftc.gov/sites/ default/files/attachments/press-releases/ftc-consumer-protection-staff-updates-agencys-guidancesearch-engine-industryon-need-distinguish/130625searchengine generalletter.pdf  

3 Search Engine Users, Pew Research Center, January 23, 2005, https://www.pewresearch. org/internet/2005/01/23/search-engine-users/  

4 The FTC has noted that many search engines now often integrate or offer specialized or vertical search options as part of their search service. “Although sometimes specialized search is just another way of organizing and presenting a subset of natural results, in other instances, it is something different entirely. Sometimes the results returned as part of a specialized search are based at least in part on payments from a third party.” https://www.ftc.gov/sites/default/files/ attachments/press-releases/ftc-consumer-protection-staff-updates-agencys-guidance-searchengine-industryon-need-distinguish/130625searchenginegeneralletter.pdf  

5 Comment [1] notes that “[t]he interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by attorneys entails the risk of practices that are misleading or overreaching.”  

6 See also Att’y Grievance Comm’n of Maryland v. Maldonado, 463 Md. 11, 203 A.3d 841 (2019) (attorney who introduced herself as “Dr. Maldonado” when calling a medical doctor’s office in order to bypass the office staff to speak directly to the medical doctor made a material misrepresentation and engaged in conduct “likely to impair public confidence in the profession, impact the image of the legal profession and engender disrespect for the court” in violation of 8.4); Att’y Grievance Comm’n of Maryland v. Kalil, 402 Md. 358, 371, 936 A.2d 854, 861 (2007) (attorney who called Merit Systems Protection Board administrative judges’ offices three times and provided three different pseudonyms did not violate 8.4 in use of pseudonyms (because it was not material) but did violate 8.4 by representing that he was calling “on behalf of” D.C. Bar Counsel; even if there was an absence of “intent to deceive” the attorney’s actions in representing that he was calling on behalf of Bar Counsel were deceitful and untrue).  

7 In Florida, there has been a flurry of activity on this issue, which remains unclear. In 2013, the bar was poised to issue an advisory opinion banning competitive keyword ads, but withdrew the proposed opinion, concluding that some forms of such advertising may be permitted. The Florida Bar Board of Governors proposed rule changes which would limit, but not entirely prohibit, competitive keyword ads. See Eric Goldman, The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads, Technology & Marketing Law Blog, June 5, 2019, https://blog.ericgoldman.org/archives/2019/06/the-florida-bar-regulates-but-doesnt-bancompetitive-keyword-ads.htm.  

8 In the scenario presented in the North Carolina Bar opinion, Attorney A selected the name of Attorney B, a competing lawyer with a similar practice, for use in the search-term-based advertising program. Attorney A’s keyword advertisement caused a link to his website to be displayed on the search engine’s search results page any time an Internet user searched for the term “Attorney B” using the search engine. Attorney A’s advertisement may appear to the side of or above the unpaid search results, in an area designated for “ads” or “sponsored links.” Attorney B never authorized Attorney A’s use of his name and the two lawyers have never formed any type of partnership or engaged in joint representation in any case.  

9 In the Texas inquiry, Lawyer A purchased keywords so that when someone conducted a search for Lawyer B, Lawyer A’s advertisement would appear to the side of or above the search results in an area designated for “ads” or “sponsored links.” The bar found that the resulting advertisement does not state or suggest that Lawyer A and Lawyer B are partners, shareholders, or associates of each other and that a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that (1) there are advertisements presented on web pages showing search results, and (2) that not every lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search. The Bar also concluded that the practice did not involve fraud, dishonesty or deceit, given the prevalent use of names of competing businesses as keywords in search-engine advertising.  

10 https://tcms.njsba.com/personifyebusiness/Portals/0/NJSBA-PDF/Reports%20&%20 Comments/In%20re%20Op.%20735%20Docket%20No.%20083396%20%20NJSBA%20Letter %20-%20RPC%20Language.pdf  

11 Examples of an attorney “lead generation service” include: a searchable “lawyer directory” that sells ads or premium listings that lawyers pay for which move the lawyer up to the top of a list; a “legal referral service” that requires a fee and claims to “pair” consumers with “the best” lawyer for the consumer’s legal problem; lawyers who pay a fee have more clients directed to them; a “legal matching service” that pairs a lawyer directory with a referral service.

REFERENCES:
● Rules Cited:

o MARPC Rule 19-307.1
o MARPC Rule 19-307.2
o MARPC Rule 19-308.4

● Ethics Opinions Cited:

o Mississippi Bar Ethics Op. No. 264 (Apr. 2022)
o NJ Supreme Ct. Adv. Committee on Prof. Ethics Op. No. 735 (June 2019)
o North Carolina State Bar 2010 Formal Ethics Opinion 14 (April 2012)
o Ohio Board of Professional Conduct Op. 2021-04 (June 2021)
o Texas State Bar Prof. Ethics Committee Op. No. 661 (July 2016)

● Cases Cited:

o Att’y Grievance Comm’n of Maryland v. Dore, 433 Md. 685, 73 A.3d 161 (2013)
o Att’y Grievance Comm’n of Maryland v. Kalil, 402 Md. 358, 936 A.2d 854 (2007)
o Att’y Grievance Comm’n of Maryland v. Maldonado, 463 Md. 11, 203 A.3d 841
(2019)
o Att’y Grievance Comm’n v. Thomas, 440 Md. 523, 103 A.3d 629 (2014)

● Other Authority Cited

o Eric Goldman, The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword
Ads, Technology & Marketing Law Blog, June 5, 2019, https://blog.
ericgoldman.org/archives/2019/06/the-florida-bar-regulates-but-doesnt-bancompetitive-keyword-ads.htm.
Page 8 of 8

o Letter from New Jersey Bar to New Jersey Superior Court, Re: In re Opinion No.
735 of the Supreme Court Advisory Committee on Professional Ethics / Docket No.
08339, February 17, 2022, https://tcms.njsba.com/personifyebusiness
/Portals/0/NJSBA-PDF/Reports%20&%20Comments/In%20re%20Op.%20735 %
20Docket%20No.%20083396%20-%20NJSBA%20Letter%20-%20RPC%20
Language.pdf

o Misplaced trust? The relationship between trust, ability to identify commercially
influenced results and search engine preference, Journal of Information Science,
May 14, 2021, https://journals.sagepub.com/doi/pdf/10.1177/01655515211014157

o Sample Letter to Internet Providers, FTC, June 24, 2013, https://www.ftc.gov/sites/
default/files/attachments/press-releases/ftc-consumer-protection-staff-updatesagencys-guidance-search-engine-industryon-need-istinguish/130625searchengine
generalletter.pdf

o Search Engine Users, Pew Research Center, January 23, 2005.
https://www.pewresearch.org/ internet/2005/01/23/search-engine-users/

 

DATE APPROVED BY COMMITTEE: January 11, 2023