The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising

December 27, 2018 · by Eric Goldman · in Marketing, Publicity/Privacy Rights, Search Engines, Trademark

In August, I reported on the Florida Bar’s continued angst about regulating competitive keyword advertising by lawyers. Read my post, “The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts),” for the full background. The short story is that in 2013, the Florida Bar considered banning lawyers’ competitive keyword advertising, but surprisingly concluded the process by blessing it. In 2018, the Florida Bar revisited banning competitive keyword advertising–despite five additional years of legal and empirical developments demonstrating the complete lack of justification–only to vote it down a second time. Then, like an immortal zombie, the issue resurrected for a third time. I made two submissions this year to the Florida Bar, in July and November, advocating against a ban.

The Florida Bar’s process is steaming towards a conclusion that ironically appears, once again, to bless competitive keyword advertising by lawyers–with a twist that the advertising lawyer would need to put his/her name in the first line of the search ad (and not place the rival’s name in the ad copy, which almost never happens).

The current proposed addition to Rule 4-7.13, the rule on misleading and deceptive advertising, would ban:

a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

A new comment would add (emphasis add):

Implication of Association or Affiliation with Another Lawyer or Law Firm
This rule prohibits any statement or implication that a lawyer or law firm is affiliated or associated with the advertising lawyer or law firm when that is not the case. Lawyers may not state or imply another lawyer is part of the advertising firm if the statement or implication is untrue. For example, when a lawyer leaves a law firm, the firm must remove the lawyer’s name from the firm’s letterhead, website, advertisements, and other communications about the law firm. An example of impermissible advertising would be including the name of a lawyer or law firm that is not part of the advertising law firm in an Internet advertisement or sponsored link that is displayed when the non-affiliated lawyer or law firm’s name is used as a search term when the advertisement does not clearly indicate that the non-affiliated lawyer or law firm is not part of the advertising law firm. Another example of impermissible conduct is use of another lawyer or law firm name as an Internet search term that triggers the display of an advertisement that does not clearly indicate that the advertisement is for a lawyer or law firm that is not the lawyer or law firm used as the search term. The triggered advertisement would not be misleading if the first text displayed is the name of the advertising lawyer or law firm and, if the displayed law firm name is a trade name that does not contain the name of a current or deceased partner, the name of the lawyer responsible for the advertisement is also displayed as the first text.

The comment bans competitive keyword advertising unless the ad clearly indicates the advertiser’s name; with a safe harbor if the advertiser’s name is listed as “the first text.” The term “first text” is ambiguous, and it appears that two different items might need to be the “first text,” a logical impossibility. I assume “first text” refers to the first line in the typical 3 line search advertising format.

On the one hand, a modest mandatory labeling requirement is not as terrible as an outright ban on competitive keyword advertising. Indeed, many attorney advertising rules require ad copy to contain the name of a responsible attorney, though how this applies to a highly space-constrained ad format like keyword ads has not always been clear. Furthermore, in theory, consumers could benefit if the labeling does, in fact, eliminate any possibility of confusion about the advertiser’s identity.

On the other hand, this rule is pointless at best and possibly pernicious at worst. The Florida Bar has no evidence that consumers are currently suffering any detriment from the status quo; nor do they have nay evidence that mandating the disclosure in the “first text” will resolve any such confusion (if it even exists). Furthermore, given the space constraints of search ads, dictating what must appear in the first text reduces the amount of space for other information, which could make it even more challenging for the ads to impart valuable information to consumers. This could undermine economic returns from search ads, making them a less valuable tool in the attorneys’ advertising toolkits, and therefore depriving consumers of the valuable information that search ads could provide.

For more on why I think the proposed move is unnecessary, see my article, Regulation of Lawyers’ Use of Competitive Keyword Advertising.

According to the Florida Bar’s ethics counsel, the proposal “will be on the Board of Governors agenda for first reading at the February Board of Governors meeting.” We’ll see if this “compromise” resolution passes in its current form. Given the unnecessary drama on this topic over the past half-decade, it seems like anything could still happen.

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The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising

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