A few weeks ago I shared word of a Wisconsin decision affirming a trial court ruling that it was permissible for a lawyer to buy sponsored links in the name of a competing law firm on Google and other search engines. Though legal and ethical, I thought it a bit unseemly.
Milwaukee Attorney, Ric Gass, who defended the lawsuit, dropped me an email and offered to do a counterpoint on my blog. Ric’s not only a good person, but also a fine trial lawyer. I am honored to oblige to share Ric’s counterpoint below.
In the spirit of full disclosure readers need to know that I represent the law firm of Cannon & Dunphy and its principals Bill Cannon and Pat Dunphy. The purpose of my post isn’t to argue their position (that has been done in the briefs and submissions in both the trial and appellate court) but rather to comment personally and more generally on the issues.
Kevin’s objection to sponsored link marketing is essentially an objection based on its style and that to his taste it is “unseemly” to bid on a word that is another’s last name. Others, such as Eric Goldman at Forbes recently and Will Hornsby of the ABA (whom Kevin has dubbed “the king of ethics and lawyer marketing on the Internet”) disagree.
Lawyers will view the bounds of marketing and “taste” differently, oftentimes influenced by their area of practice. What may be seen as acceptable marketing to the general counsel of a major corporation is assuredly different from marketing in a personal injury litigation or a domestic relations practice. We each have and are entitled to our own “tastes” in the marketing of legal services, and we each have different marketing strengths. Some may be more photogenic and do well with TV ads while others who are good writers may do well with blogs and websites.
When it comes to matters of “taste” the tactics or techniques that I feel are subject to possible dispute are the ones that are visible to the public and that can possibly damage the image of all lawyers. With sponsored links there is nothing visible to the public that degrades the image of the profession and sponsored links have become part of the current culture of internet searching that includes “related results” and “similar to” results on the search results page. (Look at the comparisons offered on Avvo.com for example.)
My second point is not a difference of opinion with Kevin but rather a position not taken up by either the trial or appellate courts in this case. Once states approved lawyer advertising the issue of tactics, techniques and taste was put in the hands of the boards of lawyer regulation. That was a decision made in most states under the rule making power of their highest court. I see that as pre-emption on these issues.
No single trial judge (nor appellate courts) should be making decisions as to lawyer advertising techniques. Instead such decisions are more appropriately made by the entity that has been designated as the entity to regulate it in the first instance: the board to of lawyer regulation, bar association or whichever. This is a matter of regulation – not litigation. And, whenever a lawyer advertising technique is labeled as “unseemly” such aspersion ought to be accompanied with the qualifier that not a single regulatory board in any state has ever prohibited sponsored link advertising or found it to be “unseemly” or degrading to the profession.
Third, an issue never reached in either decision in this case is the freedom of speech right inherent in lawyer advertising. That right has been the bedrock for all decisions allowing lawyer advertising. A solo or small firm trial lawyer may want to tell the corporate world that the small-firm lawyer can deliver a better litigation service than the large firms. To bolster the case, the lawyer may want to add facts about cases won and lost by that lawyer versus a mega firm’s litigation department. The small-firm lawyer may even name names in a factual way so that a general counsel can make a comparison in selecting counsel for the company’s next “bet your company” trial.
Freedom of commercial speech protects the right to make that case and use the names of one’s competitors. That may be perceived as too aggressive (even if tactfully done) and may not be all that smart to talk down your competitors, but those aren’t the issues. Rather the freedom to speak should be encouraged and protected in lawyer advertising because it gives the client information that may be valuable to make an informed choice: a choice not necessarily to find the best lawyer (if there is such a thing) but rather the best lawyer for a particular client and a particular legal matter. Facilitating a client’s right to information in making the choice of counsel decision assuredly trumps individual opinions of taste.
Last, every reader considering the implications (or possible use) of the Habush v Cannon decision (pdf should know (and those who view the use of sponsored links negatively) is that firms like the Habush firm which participate in the Google sponsored links program albeit bidding on and using other search terms must sign consent forms providing that all the content on its own website would not only be searchable but that Google could target that content for advertising. In four separate paragraphs Google makes it clear that “advertisements may be targeted to the content” and “this license includes a right for Google to make such Content available to other companies, …and to use such Content in connection with the provision of those services.”[i]
Obviously the words “Habush” and “Rottier” were part of the content posted on the firm’s website. That content including those last names were thus subject to the consents executed by the firm.[ii] For all of these reasons but principally for the last, I respectfully disagree with Kevin’s objection to this as “unseemly.” The potential use of their firm name was knowingly accepted by these plaintiffs, and it was consented to explicitly and implicitly by their own conduct and contracts. Consent trumps individual matters of taste.
I applaud Kevin’s epic work over all these years and second his encouragement of lawyers to network through the Internet, to display their best work through the Internet, and to use word of mouth and reputation information on the Internet to reach the clients who need them and who would chose them as the best lawyer for them and their legal matters. All lawyers ought to be doing those things.
If there is any perception that it is “unseemly” to bid for sponsored links, remember it is totally invisible to the public and at the end of the day provides a quick and easy way for potential clients to compare lawyers not as to “who is best” but which lawyer may be best for them and their case. Ross Fishman, the very first legal marketing expert inducted into the Legal Marketing Association’s Hall of Fame perhaps has said it best:
There aren’t many who would argue that lawyers shouldn’t be able to do this, and there are those who might choose not to. That’s just a matter of taste, and we do not want to go back to having other lawyers legislate taste. Those were the bad old days, when lawyers couldn’t market at all, because it was ALL considered unseemly. Tastes change. Technology changes. Let the marketplace decide.
I admire Kevin’s willingness to express his opinion and his dedication to helping lawyers do good tasteful marketing. I hope both of our expressions on this topic help readers make thoughtful marketing choices and consider not just our own business development, but the image of the entire profession and that this isn’t “all about us lawyers” but rather about helping clients find the right lawyer.
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Ric Gass is one of the founding members of Gass Weber Mullins and well-recognized for his talents as a preeminent trial lawyer. He serves as both national trial and supervising counsel for a number of insurers and self-insured corporations. While Ric has tried cases in nearly every civil substantive area, his areas of concentration include cases involving catastrophic injuries, products liability, and bad faith.
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[i] Those were the operative terms of use at the time this case was argued and readers should consult the current terms of use if considering participation in Google AdWords today. [ii] Not only did the Habush firm consent to Google’s programs it engaged in an advertising program that had an ad appear whenever a lawyer’s name was searched in Wisconsin on yellowpages.com. I cite this not to condemn the practice but to demonstrate implicit consent by similar conduct. In addition, the marketing expert presented by the Habush firm in the litigation who opined that sponsored link advertising was “unprofessional”, immediately after the trial court decision began using the same sponsored link technique bidding on the name of the defense marketing expert to have his sponsored link appear in search results for the defense expert.