If you or your law firm has a website, you may be paying someone to assist with search engine optimization (SEO). SEO is a complex process that considers how people search for things online and how search engines work. The point of SEO is, of course, to land higher on a search engine’s results page to drive more business to your firm. Without more explanation here, suffice it to say that SEO involves consideration of not only the text and information the public sees on your website, but also things like keywords and metadata that no one but your web designer can see.
Did you know that the State Bar regulates your ability to use certain keywords in your advertising campaign, even though the public does not see those words? Back in 2010, the Ethics Committee of the State Bar opined that a lawyer could not select another lawyer’s surname or law firm name to direct consumers to their website. For example, if you are Attorney Joe Smith, you could not select your competitor’s name, Bob Jones, as keywords to drive traffic to your website. The State Bar indicated this conduct is “neither fair nor straightforward” and violated Rule 8.4(c), the rule prohibiting dishonest conduct.
But, what if the other lawyer’s firm name was a trade name, such as “North Carolina Bankruptcy Lawyers” or “Greensboro Injury Attorneys?” The State Bar recently addressed this issue in a new ethics opinion, 2023 FEO 4, which permits the use of common legal search terms, such as geographic locations, practice areas, or other generic words, even if those terms also happen to be another law firm’s trade name. Of course, this would have to be the result, in my view. The opinion points out that any prohibition against using generic terms for keywords in SEO “would result in a ‘trade name land rush’ of sorts whereby lawyers would attempt to register the most common, generic search terms as trade names for the purpose of freezing out competitors from using common, generic search terms in keyword advertising campaigns.” At the same time, the public is harmed by such a prohibition because it would be deprived of the full range of potential legal service providers that would otherwise be displayed on a results page.
Another reason I believe this opinion reaches the right result, though not stated in the opinion itself, is that if the State Bar prohibited the selection of generic search terms that happen to be trade names, then lawyers could unwittingly violate the ethics rules by choosing such generic terms as keywords. This would be true even though trade names are required to be registered in the local register of deeds office. Any prohibition against using generic terms or geographical descriptions as trade names could set a disciplinary trap for innocent behavior, which could be reported to the State Bar by competitors to chill competition.
What if a lawyer’s trade name includes some generic terms, but also includes somewhat less generic words? For example, what if a lawyer had registered the name “Injuries ‘R’ Us” or “Snappy Litigation Defense?” Could another lawyer use these phrases as keyword searches in a campaign? Although these kinds of trade names were not specifically addressed in the recent opinion, I believe that a lawyer’s use of search term phrases that would not ordinarily be part of common searches by persons looking for legal services (e.g., ‘R’ Us and Snappy), and that are another law firm’s registered trade name, would still be prohibited under 2010 FEO 14.