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Board moves to regulate an internet advertising tactic

Senior Editor Top Stories

The Board of Governors has signed off on proposed amendments to Rule 4-7.13 that began with complaints about Google AdWords, and using a competitor’s name to attract clients.

BOG sealThe board voted unanimously at its recent meeting in Palm Beach to approve proposed amendments that would “prohibit a lawyer from stating or implying that another lawyer is currently part of the advertising lawyer’s firm when that is not the case.”

Miami attorney Alex Hanna requested a rule change in January 2018.

Hanna claimed competitors used his firm’s name to drive internet traffic to their site, and that the competitors’ clients threatened him with a Bar complaint in the mistaken belief that he represented them.

The latest proposed amendments do not address purchasing a competitor’s name through Google AdWords, but whether the resulting advertisement misleads consumers.

They have Hanna’s blessing.

The proposal includes a subsection (12) under “Examples of Deceptive or Inherently Misleading Advertisements.”

“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 knowingly contact a different lawyer or law firm.”

Hanna originally supported an amendment that would have added subdivision (c) to Rule 4-7.13, stating that “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.”

Eric Goldman, a UCLA law professor and co-director of the High-Tech Law Institute, and other academics, labeled proposals to regulate the advertising technique “anti-competitive.” Some board members felt that Bar rules already prohibit deceptive advertising.

The initial proposal failed on a 4-5 vote in the Board Review Committee on Professional Ethics in May 2018.

The next day, then Chair Michael Hooker told board members that the proposal generated such strong feelings — it was supported by the Citizens Advisory Committee — that BRC members agreed to fashion a new proposal.

Google submitted an objection, but it is unclear to Bar staff which version of the proposed amendments the company was addressing.

The issue is not a new one to the Bar.

Five years ago, the Board of Governors asked the Standing Committee on Advertising to draft an opinion regarding the use of search engine optimization techniques, including meta tags and hidden text.

In December 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.

The board concluded at the time that hidden text and meta tags have become so outdated that search engines penalize rather that reward them.

The latest proposed amendments to Rule 4-7.13 now go to the Supreme Court final approval.