Last week, ABA Journal reported on a North Carolina attorney who was censured for bidding on his competitors’ branded keywords, meaning he was targeting other attorneys’ and law firms’ names for pay-per-click (PPC) advertisements. This followed a 2012 ethics opinion from the NC bar, which provided that this behavior violates Rule 8.4c of the state’s rules of professional conduct. Seems pretty straightforward, right? However, as law firms continue to outsource their day-to-day online marketing operations to third-party vendors without adequate supervision, this trend could continue.

But first it’s important to distinguish between directly targeting competitors and what are otherwise acceptable PPC practices, because it’s actually not that straightforward. It’s important to note that an ad can still be listed for a competitor’s branded keywords without actively bidding on them, if the search terms are “related.”

“Ads related to…”

It’s an important distinction to make before states start regulating here. Not all PPC ads are intentionally placed or associated with a particular search term. That would make PPC extremely difficult, especially when 15% of Google searches are previously unseen keywords and/or phrases. Instead, ads are provided for related keywords.

For example, on a search for “asics” (a running shoe brand), the ad box provides “Ads related to asics.” The results include an ad for the brand’s website, one for Zappos.com (an online retailer), Amazon.com, and many other retailers. Now, you may think this is harmless, which in this situation it very well may be. Asics just wants its shoes sold. As long as the listings are all retailers who sell asics, that’s good for business.

Now search for a local law firm in your area. If the name of the firm contains “law firm” or “attorney” or “law offices of” or any other profession-specific terms, there’s a good chance other attorneys’ ads will show. For example, pretend Attorney A shares a name with an actor and is therefore harder to find online. So instead of merely searching  for “Attorney A,” you search “Attorney A attorney.” Chances are you will see ads displayed for Attorneys B, C, D, E, and F, who have all bid for the keyword “attorney.”

Bidding on generic keywords may look like targeting competitors.

Should these attorneys be disciplined? No, they were just bidding on a generic keyword. It’s not a misrepresentation, because they are, in fact, attorneys. But it can definitely look like they are targeting competitors to those unfamiliar with how AdWords work. It is important to note that consumers are getting smarter about online advertising and generally understand how this works. In fact, consumers are becoming more “ad blind” and can filter out advertisements fairly well. But it could still be confusing to some.

This doesn’t seem to have been the case in North Carolina. ABA Journal reports the order specifies that the attorney actively targeted competitors. But it’s an important distinction to make. Just because a firm’s ads constantly display for your branded search terms doesn’t necessarily mean they are targeting your keywords. However, if you see the ads when you remove generic keywords, such as “law offices” or “law firm,” it’s entirely possible they are bidding on your name, which raises an even bigger concern. Why would an attorney do this if it clearly violates ethics rules?

Your vendor simply may not know the rules.

While this behavior is accepted in non-legal markets, attorneys obviously have to respect their state’s ethics rules. And this is why it’s so important to hire an SEO who understands this difference. Attorneys simple cannot afford to delegate their pay-per-click advertising (or any online marketing) to a marketing company without actively checking in and supervising the company’s actions. Like the NC order said, it’s up to the attorney to scrutinize and approve all keywords.

Unfortunately, this doesn’t always seem to be the case. States would be wise to recognize that ads can still (unintentionally) display for branded search terms, if the search is deemed “related” to a targeted keyword. But above all, it’s important for law firms to apprise themselves of what their SEO or PPC management companies are doing. These vendors may know the marketing game, but law firms have a totally separate rule book.

I previously wrote about the legal ethics of link building, and PPC advertising follows the same unfortunate trend. Law firms don’t always pay enough attention to what their marketing companies are doing. This is one of the main reasons why we feel attorneys are best served when they directly control their online marketing.

If some functions do need to be outsourced, law firms need to stay informed. It’s simply too easy for an SEO/PPC company to unwittingly get the firm in trouble. I don’t know whether that was the case in NC, but I’m sure this isn’t the last time we’ll hear this story.

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