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Board committee takes up digital advertising

Senior Editor Regular News

Board committee takes up digital advertising

Senior Editor

When it convenes December 14 in Naples, the Board of Governors could revisit a debate over a digital advertising technique that critics contend violates professional ethics.

The debate focuses on a common digital advertising practice known as search engine optimization, which is offered by Google AdWords. The practice allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website.

Michael Hooker The proposal stems from a January complaint by Miami Bar member Alex Hanna. Hanna claims competitors used his firm’s name to attract clients, and the competitor’s clients threatened him with a Bar complaint in the mistaken belief that he represented them.

In June, the Board Review Committee on Professional Ethics narrowly voted down a proposal that called for adding subdivision (c) to Rule 4-7.13, stating, “it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the internet or other media, including directly or through a group advertising program.”

At the time, BRC Chair Michael Hooker said the vote was close, and that BRC members were willing to consider drafting their own proposal to address misleading advertisements that might result from the advertising technique. BRC staff has since drafted an alternative proposal.

It would prohibit any advertisements from stating or implying that a lawyer is affiliated with the advertising lawyer or law firm or 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 drew objections from Google, although it was unclear to staff whether Google was objecting to the previous or latest version. Some academics who reviewed the proposal called it “anti-competitive.”

Hanna’s lawyer, Richard Ovelmen, has proposed an amendment that staff considers “substantially the same,” as Hanna’s original proposal. The debate has been simmering for nearly a decade.

In 2013, the board voted 23-19 to withdraw Proposed Advisory Opinion A-12-1 because the purchase of AdWords is permissible as long as the resulting advertisements or sponsored links are clearly advertising based on their placement and wording. A majority of board members ultimately concluded that hidden text and meta tags had become so outdated that search engines penalize rather than reward them.

Critics of proposals to regulate the advertising technique say existing rules already ban false and misleading advertising.