Texas Bar Ethics Committee Approves “Competitive Keyword Advertising”

Competitive keyword advertising in the legal services industry refers to the use of a competing lawyer’s name or firm name as a hidden “meta tag” or “keyword” to boost the visibility of online advertisements purchased from search engine companies (e.g., Google, Yahoo!, Bing). Typically, it is a less well-known lawyer who takes advantage of a more established lawyer’s brand name. The practice reduces barriers to entry in the legal industry, especially by helping new entrants challenge incumbent players. Eric Goldman & Angel Reyes III, Regulation of Lawyers’ Use of Competitive Keyword Advertising, 2016 U. Ill. L. Rev. 103, 107 (2016).

Notwithstanding the fact that the practice tends to give potential legal clients increased access to information on a greater diversity of legal service options, incumbent firms have challenged competitive keyword advertising on grounds that it violates the Rules of Professional Conduct. One such challenge was brought by Jim S. Adler, a personal injury attorney known for the size of his mass-market advertising budget who brands himself as “The Texas Hammer.” See Jim Adler & Associates, Attorney Jim Adler, Jim Adler Law Firm, September 9, 2016, http://www.jimadler.com/lawyers/jim-adler.

In a Request for an Ethics Opinion to the Texas State Bar Professional Ethics Committee, Mr. Adler asked the Texas State Bar Professional Ethics Committee whether competitive keyword advertising violates three Texas Disciplinary Rules of Professional Conduct: (i) Rule 7.01(d), which prohibits lawyers from holding themselves out as being associated with lawyers with whom they are not associated; (ii) Rule 7.02(a), which bars misleading communications about a lawyer’s qualifications or services; and (iii) Rule 8.04(a)(3), which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. See Request for an Ethics Opinion.

In a ground-breaking opinion, the Texas Bar Ethics Committee responded with approval for “competitive keyword advertising.” See Tex. State Bar Prof’l Ethics Comm., Op. 661, 7/16. It marked the first time an ethics panel has endorsed the practice. The panel described the practice as a “search-engine optimization” (“SEO”) technique that legal professionals can use to ensure their brand “appears on the first page of the search results obtained when a potential client uses a search engine to seek a lawyer.” Id.

To read Mr. Adler’s Request for an Ethics opinion, click here. To read the full opinion, click here.

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