Can a North Carolina lawyer buy a competing lawyer's name as a search-engine keyword so the lawyer's own ad shows up when people search for that competitor?

Plain-English summary

A lawyer takes part in a search engine's keyword-advertising program, in which advertisers choose words or phrases that trigger their ads and no advertiser gets exclusive rights to a term. The lawyer selects a competing lawyer's name as one of his keywords, so that a search for that competitor's name returns a link to the lawyer's own website in the "ads" or "sponsored links" area. The competitor never authorized the use of his name, and the two have no partnership or joint representation. The question is whether choosing a competitor's name as a keyword violates the Rules of Professional Conduct.

The opinion concludes it does. Rule 8.4(c) makes it professional misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, and the opinion explains that dishonest conduct includes conduct showing a lack of fairness or straightforwardness, citing In the Matter of Shorter. Intentionally purchasing the recognition associated with one lawyer's name to direct consumers to a competing lawyer's website is, the opinion holds, neither fair nor straightforward, and so it violates Rule 8.4(c).

In practice

Under the North Carolina rule as it stood at the time of the opinion, conduct in which a lawyer buys a competitor's name as a search-advertising keyword to divert that competitor's prospective clients is prohibited as dishonest under Rule 8.4(c). Per the opinion, the controlling point is that trading on the recognition attached to another lawyer's name to redirect consumers to a competing site lacks fairness and straightforwardness.

Common questions

Q: Can a lawyer use a rival lawyer's name as a paid search keyword?

A: No. The opinion concludes that selecting a competitor's name as a keyword, so a search for that name returns the lawyer's own ad, violates Rule 8.4(c) as dishonest conduct.

Q: Why is it a violation if the search engine lets anyone bid on any term?

A: Per the opinion, the rule violation is about the lawyer's conduct, not the platform's mechanics: intentionally buying the recognition tied to another lawyer's name to direct consumers to a competing website is neither fair nor straightforward, which the opinion treats as dishonesty under Rule 8.4(c).

Q: What rule does this conduct violate?

A: Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation; the opinion cites In the Matter of Shorter for the point that dishonest conduct includes a lack of fairness or straightforwardness.

Background and rules framework

The opinion applies North Carolina Rule 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation, the analogue of Model Rule 8.4). It relies on In the Matter of Shorter, 570 A.2d 760 (D.C. App. 1990), for the proposition that dishonest conduct includes conduct that lacks fairness or straightforwardness.

Citations and references

Rules of Professional Conduct:

• MR 8.4 / NC Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)

Cases:

• In the Matter of Shorter, 570 A.2d 760, 767-68 (D.C. App. 1990), dishonest conduct includes conduct showing a lack of fairness or straightforwardness.

See also

• SC Bar Ethics Op. 20-01: Competitor-Name Keyword Ads
• CA COPRAC Op. 2012-186: Social Media as Advertising
• ABA Formal Op. 10-457: Lawyer Websites

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2010-formal-ethics-opinion-14/

Original opinion text

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

Inquiry:

Attorney A participates in an Internet search engine company's search-based advertising program. The program allows advertisers to select specific words or phrases that should trigger their advertisements. An advertiser does not purchase the exclusive rights to specific words or phrases. Specific words or phrases can be selected by any number of advertisers.

One of the keywords selected by Attorney A for use in the search-based advertising program was the name of Attorney B, a competing lawyer in Attorney A's town with a similar practice. 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 in connection with Attorney A's keyword advertisement, and the two lawyers have never formed any type of partnership or engaged in joint representation in any case.

Does Attorney A's selection of a competitor's name as a keyword for use in a search engine company's search-based advertising program violate the Rules of Professional Conduct

Opinion:

Yes. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). 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. 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