Can a lawyer buy a competitor lawyer's or firm's name as a search-engine keyword to display the lawyer's own ad above the competitor's?

Plain-English summary

A personal injury firm advertised through search engines such as Google and Yahoo, which let lawyers bid on keywords so that a firm's ad appears prominently, often at the top of results. The firm asked whether it could buy a competing lawyer's or firm's name as a keyword, so that a consumer searching for the competitor would see the purchasing firm's ad displayed prominently. The Board concluded a lawyer may not do this.

The Board separated two questions. First, it found the bare act of purchasing a keyword, even a competitor's name, does not by itself communicate anything false or misleading about the purchasing lawyer under Prof.Cond.R. 7.1, because it disseminates no new information; so long as the purchasing lawyer's own website is truthful, the website complies with Rule 7.1.

Second, the Board found that buying a competitor's name as a keyword may be conduct involving dishonesty, fraud, deceit, or misrepresentation under Prof.Cond.R. 8.4(c). Using the definition of "fraud" in Prof.Cond.R. 1.0(d) and Black's Law Dictionary definitions of deceit, dishonesty, and misrepresentation, the Board reasoned the purchase is an act designed to deceive an internet user into selecting the purchasing lawyer's website instead of the intended lawyer's. The Board observed an unsophisticated consumer may not realize the top result is not the intended firm, and that even when no consumer is actually deceived, the lawyer has at least attempted to violate Rule 8.4(c), itself a violation of Prof.Cond.R. 8.4(a).

The Board also concluded the conduct may violate Prof.Cond.R. 8.4(h), which bars conduct that adversely reflects on fitness to practice. Citing the profession's basic duty of honesty and integrity, the Board said using another lawyer's name without consent to divert traffic for one's own financial gain displays a lack of professional integrity and calls into question the lawyer's trustworthiness and fairness to others.

In practice

Under this opinion, an Ohio lawyer or firm may not purchase another lawyer's or firm's name as a competitive keyword in online advertising. Per the opinion, the analysis turns not on the purchasing lawyer's own website content (which can be truthful and Rule 7.1-compliant) but on the deceptive purpose and effect of buying the competitor's name, which the Board treats as dishonest conduct under Prof.Cond.R. 8.4(c), an attempted violation under 8.4(a) even when no consumer is deceived, and conduct adversely reflecting on fitness under 8.4(h).

Common questions

Q: Can an Ohio lawyer bid on a competitor's name as a Google keyword?

A: The opinion concludes no. Purchasing a competing lawyer's or firm's name as a keyword is, in the Board's view, an act designed to deceive the searching consumer and is contrary to Prof.Cond.R. 8.4(c).

Q: Is buying any keyword for advertising prohibited?

A: No. The opinion states the simple act of purchasing a keyword does not by itself communicate anything misleading about the lawyer, and so long as the lawyer's own website is not false, misleading, or nonverifiable, it complies with Prof.Cond.R. 7.1. The problem is specifically buying a competitor's name.

Q: What if no consumer is actually fooled?

A: Per the opinion, even when the consumer is not deceived into selecting the advertising lawyer's website, the lawyer has at least attempted to violate Rule 8.4(c), which itself violates Prof.Cond.R. 8.4(a).

Background and rules framework

The opinion interprets Ohio's lawyer-advertising and misconduct rules: Prof.Cond.R. 7.1 (communications concerning a lawyer's services; Model Rule 7.1), Prof.Cond.R. 7.2 (advertising; Model Rule 7.2), and Prof.Cond.R. 8.4(a), (c), and (h) (misconduct, including dishonesty and conduct adversely reflecting on fitness; Model Rule 8.4). It draws on the definition of "fraud" in Prof.Cond.R. 1.0(d) and on Black's Law Dictionary for "deceit," "dishonesty," and "misrepresentation."

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 7.1 (Model Rule 7.1)
• Ohio Prof.Cond.R. 7.2 (Model Rule 7.2)
• Ohio Prof.Cond.R. 8.4(a), (c), (h) (Model Rule 8.4)
• Ohio Prof.Cond.R. 1.0(d) (definition of "fraud")

Cases:

• Geauga Cty. Bar Assn. v. Bond, 146 Ohio St.3d 97, 2016-Ohio-187, attempted violations under Rule 8.4(a)
• Cincinnati Bar Assn. v. Blankenmeyer, 2006-Ohio-2038, professional duty of honesty and integrity
• Cleveland Bar Assn. v. Stein, 29 Ohio St.2d 77, 278 N.E.2d 670 (1972), integrity of the profession

Other references:

• Black's Law Dictionary (11th ed. 2019), definitions of deceit, dishonesty, and misrepresentation

See also

• Ohio BPC Op. 2021-005: Communicating a Specialty Not Designated by the Supreme Court
• Ohio BPC Op. 1988-028: Advertising Cases Not Handled
• Ohio BPC Op. 1989-024: Client Testimonials in Advertising

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2021/06/Adv.-Op.-2021-04-FInal.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2021-04
Issued June 11, 2021

                  Competitive Keyword Online Advertising

SYLLABUS: A lawyer or law firm may not purchase the name of another lawyer or law
firm for use in competitive keyword online advertising.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                  OPINION 2021-04
                                 Issued June 11, 2021

                   Competitive Keyword Online Advertising

SYLLABUS: A lawyer or law firm may not purchase the name of another lawyer or law
firm for use in competitive keyword online advertising.

QUESTION PRESENTED:

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.

APPLICABLE RULES: Prof.Cond.R. 7.1, 7.2, 8.4(a), 8.4(c), 8.4(h).

OPINION: The requesting lawyer is a member of a law firm concentrating in personal
injury law. The firm advertises through use of Internet search engine providers such as
Google and Yahoo. The law firm reports that it is now common practice for these search
engine providers and others to permit lawyers to bid on keywords so that when a
consumer enters the keyword, the advertising law firm’s name is prominently displayed,
typically toward the top of the search results. Search engine providers do not prohibit
advertising lawyers from purchasing the name or names of another competing law firm.
In most instances, keywords can be purchased by more than one advertiser. A consumer
searching for a particular law firm may enter the name of one firm but intentionally or
inadvertently select the link to a competing law firm as a result of the use of competitive
keyword advertising.
Op. 2021-04 2

   Prof.Cond.R. 7.1 prohibits a lawyer from making a false, misleading, or

nonverifiable communication about the lawyer or the lawyer’s services. 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 nonverifiable, the communication complies with Prof.Cond.R. 7.1.

   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. Black’s Law Dictionary defines “deceit”, “dishonesty”, and “misrepresentation”
as follows:

   (1) “Deceit” is the act of intentionally leading someone to believe something that
      is not true; an act designed to deceive or trick;

   (2) “Dishonesty” is deceitfulness as a character trait; behavior that deceives or
      cheats people; untruthfulness, untrustworthiness;

   (3) “Misrepresentation” is the act or an instance of making a false or misleading
      assertion about something, usually with the intent to deceive.

Black’s Law Dictionary (11th ed. 2019).

   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
Op. 2021-04 3

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.

   The Board concludes 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.