Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by using the name of a competing lawyer or law firm as a keyword in the implementation of an advertising service offered by a major search-engine company?
Recognizing that many potential clients search for a lawyer by using internet search engines, Lawyer A uses various search-engine optimization techniques to try to ensure that his name appears on the first page of the search results obtained when a potential client uses a search engine to seek a lawyer. One way Lawyer A seeks to achieve this goal is by participating in internet search-based advertising programs offered by search engines that are in widespread use by many types of businesses.
These search-based advertising programs allow a business to select specific words or phrases (“keywords”) that will cause the business’s advertisement to pop up in the search results of someone using that keyword in a search. The advertiser does not purchase exclusive rights to specific keywords; the same keywords can be used by a number of advertisers.
Lawyer B is a competing lawyer in Lawyer A’s town. Lawyer B’s area of practice is similar to Lawyer A’s. Lawyer A and Lawyer B have never been law partners or engaged in joint representation in any case.
One of the keywords selected by Lawyer A is the name of Lawyer B. Lawyer A’s keyword selection causes Lawyer A’s name and a link to his website to be displayed on the search engine’s search results page any time an internet user searches for Lawyer B using the search engine. Lawyer A’s advertisement will appear to the side of or above the search results in an area designated for “ads” or “sponsored links.” In addition to displaying Lawyer A’s name and a link to Lawyer A’s website, the ad or sponsored link may contain additional text concerning Lawyer A and his practice. Usually Lawyer B’s name would also be listed in the search results. Moreover, if Lawyer B had also purchased similar advertising services from the search engine and had used his own name as a keyword, Lawyer B’s name would also be listed in the ad or sponsored link section as well as in the regular search results when Lawyer B’s name was used by a potential client as a search term.
Lawyer A’s keyword advertisement or sponsored link does not indicate whether or not Lawyer A and Lawyer B are affiliated. Lawyer B did not authorize Lawyer A to use Lawyer B’s name in connection with Lawyer A’s keyword advertisement.
Tex. Comm. On Professional Ethics, Op. 661 (2016)