The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads

June 5, 2019 · by Eric Goldman · in Marketing, Publicity/Privacy Rights, Search Engines, Trademark

The Florida Bar has a drama-filled history regarding the regulation of competitive keyword advertising by lawyers. This post explains the background. In 2013, the bar was poised to ban competitive keyword ads, but at the last minute it did a 180 and expressly authorized competitive keyword ads. In 2018, some Florida bar members took another run at banning competitive keyword ads. After several preliminary successes in that direction, the Florida Bar of Governors has proposed to limit, but not eliminate, competitive keyword ads.

The Ethics Rule Revisions

The proposal adds the following to Rule 4-7.13:

(12) 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.

The proposal adds a new comment:

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 comments amplify what the bar considers per se “misleading”:

buying a rival lawyer’s name as the search keyword when the rival lawyer’s name appears in the ad copy without “clearly indicating” that the lawyer isn’t affiliated with the firm. This is a disclaimer requirement.
buying a rival lawyer’s name as the search keyword, not including the rival’s name in the ad copy, and not clearly indicating that the ad is from someone else. There is a safe harbor for including the advertiser’s name as the ad’s “first text” (and the responsible lawyer’s name if the firm name doesn’t include a person’s name). This is a mandatory labeling requirement.

Implications

It Could Have Been Worse. The rule allows competitive keyword advertising; it just restricts how it’s done. That result is far better than some of the intermediate proposals being evaluated in 2018. Because advertisers have an obvious path towards compliance, most lawyers will likely shrug their shoulders and do what the bar expects.

Implementation Questions. The comments raise some obvious questions. With respect to the disclaimer requirement, exactly what must the advertiser do? Must the advertiser expressly say “we’re not X” in the ad copy? Or will context be sufficient? For example, what result if the ad copy says:

“Switch from” the rival to the advertiser.
“Lower fees than” the rival.
“We take cases against” the rival.

All of these examples indicate that the advertiser and the rival are not the same firm. But do they “clearly” indicate it enough to satisfy the bar’s standard? If not, the advertiser will need to use some of its scarce remaining ad copy space to add some kind of disclaimer.

As for the mandatory labeling requirement, what exactly does the “first text” mean? Does it mean the first words in the first line? That’s not how ad copy is typically structured; usually the first line is a call-to-action or some benefit to consumers. So how will those ads perform?

Is It Constitutional? If we focus just on the rule and not the comments, it’s impermissible to mislead a searcher to contact the wrong lawyer. At that level, the rule is relatively innocuous. Though the rule technically could apply to truthful ads, nevertheless the requirement to “mislead” suggests enough falsity or consumer deception to support the intervention.

However, the picture is less rosy when considering the comments. For example, if the disclaimer must be explicit, that may be impossible within the keyword ad format’s space limitations. If that’s the case, the comments make the rule into a functional ban on truthful competitive keyword ads referencing a rival lawyer, despite the many legitimate circumstances where such references are appropriate and socially beneficial, such as comparative ads, critical ads, ads seeking plaintiffs to sue a targeted lawyer, and more. I’m skeptical that a functional ban on truthful ads would survive intermediate scrutiny. I imagine the bar will fall back on a looser interpretation of “clear indication” if ever challenged, but I wonder what set of circumstances could realistically transpire to get this rule/comment before a judge….

Is It Good Policy? For a while, it appeared that the bar was going to create a new sui generis IP right in lawyers’ names. That would have been terrible because it would have filled negative spaces of both trademark and publicity rights laws, and negative spaces are essential to IP law. Plus, it’s wrong for a non-elected administrative agency to create new IP, which really should be a huge deal. For more on the IP overlay to this issue, see my article “Regulation of Lawyers’ Use of Competitive Keyword Advertising.”

The final proposal is grounded more in traditional false advertising/consumer protection. But does the proposal really protect consumers? The bar did not provide any evidence that consumers were currently being harmed–or that the disclaimer/mandatory disclosure requirements will cure any harm. Indeed, by structuring what information can appear in the highly space-constrained context of keyword ads, the bar made it more likely that the ad copy won’t enlighten consumers–and may very well mislead them more, by omitting crucial information or possibly exacerbating any consumer misunderstandings. This proposal is the opposite of evidence-based policymaking.

The Patchwork of Rules Among State Bars. North Carolina still has its archaic and unjustified ban on lawyers using competitive keyword advertising, and Texas still allows it. Florida was at the same place as Texas, but now it adopts a middle position, permitting competitive keyword advertising subject to the disclaimer or mandatory labeling. Where does that leave us? I thought the Texas rule was clear and persuasive, so I had expected it to sweep the nation. Florida unfortunately now takes us a step backward (for no good reason, I’ll add). So it appears this issue, so firmly rooted in the 2000s, will keep vexing bar organizations well into the 2020s.

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The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads

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