The State Bar of California currently has no rules limiting the use of an attorney’s name when it comes to pay-per-click (PPC) advertising with Google. A PPC campaign allows a law firm to bid on a specific phrase, so that when someone types in “car accident lawyer” or “Los Angeles real estate attorney” the firm’s ad appears at the top of the Search Engine Results Page (SERP).
This is not a problem when it comes to terms relevant to potential clients. However, there should absolutely be a restriction on using a specific attorney’s name as a PPC term and currently, there are no restrictions. What this means is that if an attorney types in “attorney john doe” or “attorney jane doe” into Google, other attorneys can also bid on those attorney names as if they were generic terms. So, attorneys who have spent decades cultivating a practice, deepening their knowledge of the law and obtaining tremendous results on behalf of their clients can lose a client to someone who uses their name as if it were a consumer product.
In this way, the State Bar of California is allowing attorneys to co-op a competing attorney’s name by using it as a billboard to confuse and steer consumers to the wrong destination. Without providing restrictions on attorney advertising when it comes to PPC, someone searching for a particular lawyer can be misled with some underhanded advertising.
Why Spend Money Advertising Under a Competitor’s Name?
Public Opinion of Attorneys
In 2015, a Gallup poll uncovered some disappointing, but unsurprising facts when it came to public opinion of attorneys. Only 4% of respondents rated the “honesty and ethical standards” of lawyers as “very high.” In that same poll: 74% agreed that attorneys were more interested in winning than in seeing justice served; 69% believed lawyers were more interested in making money than in serving clients; and 57% claimed lawyers were more concerned with self-promotion than in a client’s best interests.
Attorneys on all sides struggle with the general reputation of the legal profession for various reasons. But how can we in the legal field (attorneys and nonattorneys alike) blame the general public for having a low opinion of lawyers when the State Bar won’t act to prevent unscrupulous marketing companies from capitalizing on the names of accomplished attorneys?
Here is a current example. On Feb. 26, 2020, if a Google user typed in the name “Bill Shernoff” he or she would have seen an attorney ad before the organic search terms. William M. Shernoff is a pioneer in the area of insurance bad faith law, has cultivated a long history of fighting for consumers against insurance companies and has a tremendous reputation in the legal field.
He earned his reputation, and while Google may not have any interest in protecting those reputations the State Bar should absolutely be motivated to get involved. The terms used left no room for the user to search for any attorney other than Bill Shernoff. He does not have a common name, he is not Bill Smith or John Thomas; this is a specific name of a specific attorney who is being taken advantage of by practitioners with far less experience, know-how and skill.
Advertising Attorneys May Be Unaware That They’re Bidding on Competitor’s Names
In a similar way that attorneys are competitive, so are advertising agencies. One of the best ways to impress a client is to show them that they’ve lowered their cost-per-click (CPC), increased their click-through-rate (CTR) and/or conversions while simultaneously increasing traffic. Even though this strategy might result in a high bounce rate, (the rate at which people leave the website immediately or without going past the landing page) the risk is worth the reward. Many advertising attorneys are far too busy to pay full attention to what phrases are being bid on. In a bad scenario the ad agency might be deceptive with how the traffic is generated, in a worse scenario the advertising attorney may be complicit or encouraging of the strategy. However, that makes it even more important for the State Bar to intervene as nonlawyers are perpetuating the negative perception of the legal field.
California Is Behind the Curve
States like South Carolina have already established language in their Rules of Professional Conduct 7.2(e): “No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the nonadvertising lawyer.”
In 2012 North Carolina State Bar adopted an opinion that specifically addresses the use of another attorney’s name as a key phrase in an internet advertising campaign and concluded, “The 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.”
New Jersey’s Rules of Professional Conduct 7.1(a)(1) states: “A lawyer shall not make false or misleading communications about the lawyer, the lawyer’s services, or any matter in which the lawyer has or seeks a professional involvement. 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.”
This issue can be easily addressed by passing a new resolution to California Bar Rule 1-400 to state that unique attorney names can no longer be bid on as a PPC term in the same way that “car accident lawyer” or “real estate attorney” currently can.
Co-Authored by Doug Bradley and Joe Marchelewski Joe Marchelewski is president of AIJ Communications and has more than 17 years of experience handling PR and communications from law firms throughout the country. Contact him at www.aijcommunications.com.
*Reprinted with permission from the September 11, 2020 issue of TheLaw.com | The Recorder. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Original Article.