Can a Texas lawyer buy a competitor's name as a keyword in a search-engine ad program so the lawyer's ad shows up when someone searches the competitor's name?
Texas Ethics Opinion 661: Using a Competitor's Name as a Search-Engine Ad Keyword
Short answer: Per the Committee, a lawyer does not violate the Texas rules merely by using a competing lawyer's name as a keyword in a search-engine advertising program, so long as the ad is truthful, does not falsely suggest an affiliation, and complies with the advertising rules.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion considers Lawyer A, who participates in search-engine ad programs and selects the name of competing Lawyer B as one of his keywords, so that when a user searches for Lawyer B, Lawyer A's ad or "sponsored link" appears alongside the results. The lawyers are not and never were affiliated, the ad does not say whether they are affiliated, and Lawyer B did not authorize the use of his name.
The Committee notes that advertising is governed by Part VII of the Texas rules, which do not specifically address using a competitor's name in internet advertising, and analyzes three provisions. Rule 7.01(d) bars holding oneself out as a partner, shareholder, or associate of another lawyer unless that is true; Rule 7.02(a) bars false or misleading communications, including truthful statements that omit a fact or that would lead a reasonable person to an unfounded conclusion (Comment 3). The opinion concludes that, in the normal case, using a competitor's name as a keyword violates neither rule: the resulting ad does not state the lawyers are partners or associates, and a person sophisticated enough to use a search engine to find a lawyer should recognize ads in the results and would be unlikely to think every listing reflects a relationship with the searched-for lawyer. The opinion compares Habush v. Cannon (Wis. Ct. App. 2013).
On Rule 8.04(a)(3) (dishonesty, fraud, deceit, or misrepresentation), the Committee concludes that, given how commonly all kinds of businesses use competitors' names as keywords, the practice by lawyers is not dishonest, fraudulent, or deceitful. In reaching this conclusion, the Committee considered but declined to follow North Carolina 2010 Formal Ethics Opinion 14, which found such use a violation. The opinion limits itself to the disciplinary-rule question and cautions that the lawyer's ads must still comply with the other advertising rules, in particular Rule 7.04, and may be subject to other federal, state, or out-of-state requirements.
In practice
Under this opinion, and under the Texas rules as they stood at the time of the opinion, using a competitor's name as a keyword in a search-engine advertising program does not by itself violate the Texas Disciplinary Rules. The opinion holds that the conclusion depends on the ad not claiming a partnership or association (Rule 7.01(d)) and not misleading a reasonable searcher into believing the lawyers are affiliated (Rule 7.02(a)), and that the ad must remain truthful and comply with all applicable advertising rules, including Rule 7.04.
Common questions
Q: Can I bid on a rival lawyer's name as a search-engine ad keyword?
A: Per Opinion 661, yes; doing so does not by itself violate the Texas rules, provided the resulting ad is truthful and does not falsely suggest the two lawyers are affiliated.
Q: Isn't using a competitor's name dishonest under Rule 8.04(a)(3)?
A: The opinion concludes it is not, reasoning that businesses of all kinds commonly use competitors' names as keywords, so the practice is neither dishonest nor deceitful; the Committee considered but did not follow North Carolina's contrary 2010 Formal Ethics Opinion 14.
Q: When would this cross the line?
A: The opinion explains it would violate Rule 7.01(d) if the ad held the lawyer out as a partner, shareholder, or associate of the competitor, and Rule 7.02(a) if it would lead a reasonable person to believe the two lawyers are associated; the ad must also comply with Rule 7.04 and other advertising requirements.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 7.01(d) (holding out as partner/associate), Rule 7.02(a) (false or misleading communications about a lawyer's services), and Rule 7.04 (advertisements in the public media), which correspond to the lawyer-advertising and firm-name principles of ABA Model Rules 7.1 and 7.5, together with Rule 8.04(a)(3) (dishonesty, fraud, deceit, or misrepresentation; ABA Model Rule 8.4(c)).
Citations and references
Rules of Professional Conduct:
- MR 7.1 (communications concerning a lawyer's services)
- MR 7.5 (firm names and letterheads)
- MR 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation)
- Texas Disciplinary Rules 7.01(d), 7.02(a), 7.04, 8.04(a)(3)
Cases:
- Habush v. Cannon, 828 N.W.2d 876 (Wis. Ct. App. 2013)
Other opinions cited:
- North Carolina State Bar 2010 Formal Ethics Opinion 14 (April 27, 2012): considered but not followed
See also
- California Op. 2001-155: Law Firm Internet Website Advertising
- ABA Formal Op. 496: Responding to Online Criticism
- TX Ethics Op. 654: Offering Free Warrant Checks and Bail Bond Information to Attract Clients
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-661/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_661.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by using the name of a competing lawyer or law firm as a keyword in the implementation of an advertising service offered by a major search-engine company?
STATEMENT OF FACTS
Recognizing that many potential clients search for a lawyer by using internet search engines, Lawyer A uses various search-engine optimization techniques to try to ensure that his name appears on the first page of the search results obtained when a potential client uses a search engine to seek a lawyer. One way Lawyer A seeks to achieve this goal is by participating in internet search-based advertising programs offered by search engines that are in widespread use by many types of businesses.
These search-based advertising programs allow a business to select specific words or phrases ("keywords") that will cause the business's advertisement to pop up in the search results of someone using that keyword in a search. The advertiser does not purchase exclusive rights to specific keywords; the same keywords can be used by a number of advertisers.
Lawyer B is a competing lawyer in Lawyer A's town. Lawyer B's area of practice is similar to Lawyer A's. Lawyer A and Lawyer B have never been law partners or engaged in joint representation in any case.
One of the keywords selected by Lawyer A is the name of Lawyer B. Lawyer A's keyword selection causes Lawyer A's name and a link to his website to be displayed on the search engine's search results page any time an internet user searches for Lawyer B using the search engine. Lawyer A's advertisement will appear to the side of or above the search results in an area designated for "ads" or "sponsored links." In addition to displaying Lawyer A's name and a link to Lawyer A's website, the ad or sponsored link may contain additional text concerning Lawyer A and his practice. Usually Lawyer B's name would also be listed in the search results. Moreover, if Lawyer B had also purchased similar advertising services from the search engine and had used his own name as a keyword, Lawyer B's name would also be listed in the ad or sponsored link section as well as in the regular search results when Lawyer B's name was used by a potential client as a search term.
Lawyer A's keyword advertisement or sponsored link does not indicate whether or not Lawyer A and Lawyer B are affiliated. Lawyer B did not authorize Lawyer A to use Lawyer B's name in connection with Lawyer A's keyword advertisement.
DISCUSSION
Advertising, including internet advertising, is addressed in Part VII of the Texas Disciplinary Rules of Professional Conduct. The Texas Disciplinary Rules do not specifically address the question of whether it is permissible for a lawyer to use a competitor's name to enhance the lawyer's internet advertising. However, several provisions of the Texas Disciplinary Rules must be considered with respect to this question.
Rule 7.01(d) states that "[a] lawyer shall not hold himself or herself out as being a partner, shareholder, or associate with one or more other lawyers unless they are in fact partners, shareholders, or associates."
Rule 7.02(a) prohibits a lawyer from making or sponsoring "a false or misleading communication about the qualifications or the services of any lawyer or firm." A communication is false or misleading if it "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading[.]" Rule 7.02(a)(1). Comment 3 to Rule 7.02 explains the standard set forth in Rule 7.02(a)(1) as follows:
"Sub-paragraph (a)(1) recognizes that statements can be misleading both by what they contain and what they leave out. Statements that are false or misleading for either reason are prohibited. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation."
Under these Rules, if Lawyer A's use of Lawyer B's name as a keyword in search-engine advertising results in an advertisement that holds out Lawyer A to be a shareholder, partner, or associate of Lawyer B, then Lawyer A's use of Lawyer B's name would violate Rule 7.01(d). Furthermore, if such use of Lawyer B's name would lead a reasonable person to believe that Lawyer A and Lawyer B are associated in some way, then the use of Lawyer B's name as a keyword would be a misleading communication in violation of Rule 7.02(a).
In the opinion of this Committee, the use of a competitor's name as a keyword in the factual circumstances here considered would not in normal circumstances violate either Rule 7.01(d) or Rule 7.02(a). The advertisement that results from the use of Lawyer B's name does not state that Lawyer A and Lawyer B are partners, shareholders, or associates of each other. Moreover, since 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. Compare Habush v. Cannon, 828 N.W.2d 876 (Wis. Ct. App. 2013) (finding no violation of Wisconsin right-of-privacy statute when one law firm used the name of a competing law firm as a keyword in search-engine advertising).
In addition to Rules 7.01(d) and 7.02(a), Rule 8.04(a)(3) must also be considered. Rule 8.04(a)(3) prohibits a lawyer from engaging in conduct "involving dishonesty, fraud, deceit or misrepresentation." In the opinion of the Committee, given 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. Thus such use of a competitor's name in internet search-engine advertising is not a violation of Rule 8.04(a)(3). In reaching this conclusion, this Committee has considered but does not concur with 2010 Formal Ethics Opinion 14 of the Ethics Committee of the North Carolina State Bar (April 27, 2012) (ruling that a lawyer's use of a competitor's name as a keyword in a search-engine advertising program violates the equivalent of Texas Disciplinary Rule 8.04(a)(3) because such use constitutes "conduct involving dishonesty" in that the conduct shows "a lack of fairness or straightforwardness").
It should be noted that this opinion addresses only whether the use of a competitor's name in internet search-engine advertising programs violates the Texas Disciplinary Rules of Professional Conduct. Although such use of a competitor's name as a keyword in advertising programs does not in the opinion of the Committee involve a violation of the Texas Disciplinary Rules, a Texas lawyer's participation in such an advertising program must comply with the other provisions of the Texas Disciplinary Rules applicable to advertising, in particular Disciplinary Rule 7.04 on advertisements in the public media. Moreover, depending on the circumstances, a Texas lawyer advertising through keywords on internet search engines may be subject to other requirements or prohibitions imposed by federal or state law or by professional ethics rules of other jurisdictions.
CONCLUSION
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 in the implementation of an advertising service offered by a major search-engine company. The lawyer's statements included in this advertising program must not contain false or misleading communications and must comply in all respects with applicable rules on lawyer advertising.
Tex. Comm. On Professional Ethics, Op. 661 (2016)