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Skylar R. Croy

Abstract

Search engine providers, like Google and Yahoo!, make money by allowing advertisers to bid on keywords. When a user enters the keyword, the advertisement is prominently displayed, typically toward the top of the results.

States are divided on whether to allow attorneys to bid on the names of other attorneys—a practice known as competitive keyword advertising. On one hand, just this summer, a New Jersey ethics panel took the position that competitive keyword advertising does not, generally, violate of the rules of professional conduct. However, the advertisement may not include text with the searched-for attorney’s name that is hyperlinked to the advertising attorney’s website. Similarly, the Florida Bar Board of Governors recently passed a limited form of regulation, which awaits the Supreme Court of Florida’s approval before taking effect. Texas has held competitive keyword advertising is ethical as long as a reasonable person would not believe the advertising attorney is associated with the searched-for attorney. Kentucky has not taken a stance per se but it did not discipline a lawyer for participating. On the other hand, South and North Carolina have disciplined attorneys for bidding on another attorney’s name.

Those in favor of allowing attorneys to bid on other attorneys’ names have argued that a prohibition would effectively create a new intellectual property right in attorney names. They argue competitive keyword advertising does not violate trademark law or publicity rights.

This Article argues in favor of regulation. It shows the debate is more complicated than the scholarly literature currently acknowledges and, in particular, questions the way in which intellectual property has been used as a framework.

First, a violation of a disciplinary rule does not depend upon a violation of civil law. Neither a violation of trademark law nor publicity rights is necessary for the imposition of discipline.

Second, search engine providers, and their customers that purchase keywords, have a pecuniary interest in making keyword advertisements look like organic results: Consumers trust organic results more. Indeed, substantial empirical evidence, in numerous studies, demonstrates consumers struggle to identify which results of a search are advertisements. This kind of confusion should be of concern to regulators because it suggests all keyword advertising (even keyword advertising that does not involve the purchase of another attorney’s name) is manipulative and inherently misleading. Trademark law is not concerned with this kind of confusion: It merely cares about whether consumers are confused as to source, sponsorship, or affiliation.

Third, some evidence suggests consumers are confused in the trademark sense: At least when the advertisement uses the searched-for attorney’s name, some clients have actually hired attorneys thinking they were someone else. Even more have probably clicked on a link for one attorney only to realize it was someone else, unaffiliated with the attorney they searched for. This causes frustration and distrust of the legal profession. Furthermore, competitive keyword advertising is a dishonorable attempt by attorneys to piggyback on the reputation of another attorney, implicating the attorney’s oath. Competitive keyword advertising is thus worse than non-competitive keyword advertising.

Fourth, the proposition that attorney participation does not violate publicity rights stems from a single case—Habush v. Cannon. This was a case decided by the Wisconsin Court of Appeals—an intermediate appellate court— and the court stated the decision was “a close one.” Furthermore, the case’s reasoning had little to do with consumer confusion, making it of little value for regulators given that they are primarily concerned with protecting the public.

In summary, regulation is justified.

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