Law firms have always faced a complex environment when trying to advertise. On the one hand, advertising is crucial if a firm is to bring in enough business to survive and thrive – a large law firm (let alone a small law firm) cannot survive on word of mouth alone.
On the other hand, law firms face obstacles that other companies do not. Law firms, like other advertisers, have to adhere to state and federal truth in advertising laws. But attorneys are also bound by state bar association rules, explicitly articulated ethical codes and the “unwritten rules” of the profession, which frown upon certain forms of advertising.
These issues have only become cloudier in these days of highly targeted digital advertising. A recently settled legal dispute in New Jersey between two law firms over Google advertising shows just how easy it is to cross ethical lines.
False Advertising in the Google Age
The case involves two prominent New Jersey law firms: Hark & Hark and Helmer, Conley & Kasselman. In June, Helmer, Conley & Kasselman filed suit against Hark & Hark, alleging that the latter firm had illegally directed internet users to Hark & Hark’s website.
Here’s how it worked. Hark & Hark contracted with Google AdWords (now known as Google Ads), an advertising platform run by the search giant. According to Helmer, Conley & Kasselman’s lawsuit, Hark & Hark placed sponsored results on searches for terms related to Helmer, Conley & Kasselman – if a user searched for one of the words in the firm’s name, the firm “Helmer, Conley & Kasselman” would appear, but the address and phone number for Hark & Hark would show up at the top of the page, as would a link to the Hark & Hark website.
Sponsored results are advertisements companies pay to place on certain search terms – so, for example, if you Google “law firms in New Jersey,” you will receive the organic results that the search itself generates, but above the organic results you will also see advertisements (labeled as such) for firms that pay Google to place their links on the “law firms in New Jersey” search page. If a user clicks on the advertisement, the company pays a fee to Google.
Hark & Hark Backs Down
Helmer, Conley & Kasselman filed suit under the federal Lanham Act, which is the federal law that governs trademarks and other cases of unfair competition. In addition, the firm filed under New Jersey’s unfair competition statute and other common law torts.
The case was resolved in August when Hark & Hark signed a consent decree saying they would never engage in similar advertising tactics. The firm swore they had ended their contracts for keywords related to Helmer, Conley & Kasselman and agreed to pay the latter firm’s legal fees.
Helmer, Conley & Kasselman then dropped the case without seeking any other compensation from Hark & Hark.
Takeaways from the Case
The temptations here are easy to understand. Competition in the legal field is intense, especially in New Jersey and other East Coast locations. A skillfully crafted internet marketing campaign can be the difference between a successful business and a failed one.
Still, there are lines, and Hark & Hark appears to have crossed them. Law firms are, of course, expected to adhere to the same laws as everyone else, but they also must comply with the applicable state bar’s ethical standards The American Bar Association’s guidelines on legal advertising lay out expectations for how attorneys should conduct themselves in their advertising although each state has adopted its own version of the legal advertising rules.
Because digital marketing offers law firms more tools than ever for targeting potential clients, the temptations are greater than ever. And it is easier than ever to cross ethical lines.
None of this means that it’s impossible for attorneys to ethically advertise on Google or any other digital platform. In fact, countless firms do just that every day. However, it’s important for attorneys to possess a clear understanding of their legal and ethical responsibilities and to take every step necessary to ensure their advertisements stay on the right side of the line.
