The Standing Committee on Advertising has issued Proposed Advisory Opinion A-12-1 reprinted below. Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Issuing Advisory Opinions on Advertising and Solicitation, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held at The Florida Bar Annual Convention at 2 p.m. on Thursday, June 27 at the Boca Raton Resort & Club. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why The Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.
PROPOSED ADVISORY OPINION A-12-1
March 5, 2013
The Standing Committee on Advertising has been directed by The Florida Bar Board of Governors to issue an opinion regarding lawyers’ use of content and search engine optimization techniques in websites to improve the website’s performance in internet search engines. The intent of this opinion is to educate attorneys on the prohibited use of false, deceptive and/or misleading content or techniques in the design and optimization of their websites and to provide some examples. First, it is entirely acceptable to employ website design, content and search engine optimization techniques in law firm websites as a method of marketing legal services and educating the public about a particular law firm, its attorneys, and its practice. In doing so, law firms must take care to comply with the Rules Regulating the Florida Bar in the design, content and optimization of their websites. This advisory opinion is intended to provide some guidance to attorneys in this rapidly changing media.
Websites used to promote the lawyer or law firm are subject to the lawyer advertising rules. Rule 4-7.11(a). Lawyers are prohibited from engaging in “deceptive or inherently misleading advertising.” Rule 4-7.13. Included within the prohibition is any advertisement that “implies the existence of a material nonexistent fact.” Rule 4-7.13(a)(3). The Committee is of the opinion that certain website content and the use of certain internet search engine optimization techniques can be false, deceptive or misleading conduct that is prohibited by Rule 4-7.13. Examples include “hidden text” or “meta tags” that use another lawyer’s or law firm’s name without a proper purpose, a false representation that a law firm has an office in a particular location when the lawyer does not have an office at that location, or representing that a lawyer handles cases in an area of practice that the lawyer or firm does not practice.
One specific example of false, deceptive and misleading search engine optimization techniques would be the use of “hidden text” that is not visible to the human eye but is visible to search engines.1 Such “hidden text” would almost always be inherently false and misleading. Major search engines such as Bing and Google discourage the use of hidden text as a form of spam used to “artificially inflate search engine ranking,” consider it a form of deception, and lower the rankings of websites who use hidden text.2
Another example of a false, deceptive or misleading technique would be the use of another lawyer’s name or the name of another law firm in a firm’s website when the firm has no legitimate connection, relationship or history with that lawyer or law firm and the reference is purely intended to unfairly manipulate search engines in favor of the firm’s website by using the name of another firm or lawyer. Yet another example of prohibited techniques would be the use of false, deceptive or misleading meta tags on a website.3 Like hidden text, meta tags are not visible to viewers, but search engines read meta tags, which are properly used to optimize internet search result positions.4 While the use of meta tags is not prohibited, the use of false, deceptive or misleading meta tags is prohibited.
The same analysis applies when lawyers purchase advertising on a search engine keyed to specific words or phrases, e.g. buying Google Adwords. Lawyers may not purchase the name of another lawyer or law firm as a key word in search engines so that the lawyers’ advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term.
The above are merely examples of the type of website design and optimization techniques that are considered false, deceptive and/or misleading. Lawyers may not use any content or text, including but not limited to hidden text or meta tags, to deceive or mislead the public. Because lawyers themselves often do not construct their own websites, lawyers should take steps to assure that their website designers and optimizers are aware of the Rules Regulating the Florida Bar and that they use techniques and content that are neither false nor misleading and that conform to ethical practices. The Committee strongly encourages lawyers to provide copies of the lawyer advertising rules to their website designers.
1 “What is Hidden Text?” SEO Logic, http://www.seologic.com/faq/hidden-text
2 Id. See also, “Why is Hidden Text an Unethical SEO Method? SEO Consult, http://www.seoconsult.com/seoblog/ethical-search-engine-optimisation/why-is-hidden-text-an-unethical-seo-method.html. For additional information on questionable methods of optimizing search engine results, see ”17 Black Hat SEO Techniques to Avoid,” Design Hammer, http://designhammer.com/blog/17-black-hat-seo-techniques-avoid
3 “Death of A Meta Tag,” Search Engine Watch, September 30, 2002, http://searchenginewatch.com/article/2066825/Death-Of-A-Meta-Tag.