As has been discussed ad nauseam, it’s a tough time to be a lawyer right now. The legal industry is in a rut and the economy continues to limp along. With the flood of lawyers that have been forced to hang their shingle over the past few years, there has been increased competition for clients. This has led to some fairly cutthroat competition in the world of attorney advertising.
Many types of practice don’t advertise. Or rather, their advertising is of the tried-and-true “display expertise” variety. Write articles for your bar association magazine, speak at clients’ industry events, join boards and committees. Not so much talking about yourself, but showing that you are active and engaged in the legal industry. Let your reputation speak for itself; let others talk about you. Develop a reputation, not a brand.
But building a reputation is hard. Developing a brand is expensive. Wouldn’t it be easier if you could just mooch off of someone else’s hard work or money? Such was the proposition to New York attorney (and occasional ATL writer) Eric Turkewitz this past week…
Over at his blog, Turkewtiz recounts how a marketeer approached him with a scheme to leech off of the names of other attorneys:
The pitch was simple: The company would use the names of other personal injury attorneys as keywords for Google and my name would pop up in an ad. In other words, they want me to trade on the names of my “competitors” (a/k/a friends and colleagues). This was the emailed pitch:
“By staying away from the expensive $100+ cost per click keywords, we get right to the good stuff that is cheap, targeted, and needs help now. Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards. We show up above them on Google and Bing, and they call us instead of them.”
Whoa. Now I may not always be the sharpest knife in the block – just ask my kids — but I do know that trading on the name of someone else is, what we call in legalese, a big, fat, hairy, ugly no-no. This is New York’s Civil Rights Law §50, also known as the right to privacy (and elsewhere, in various forms, the right to publicity):
“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
And in Civil Rights Law §51, there is a private right of action, and this includes both compensatory and punitive damages. In other words, I could be sued by the people whose names I’ve appropriated. And unlike other suits against me, this one could actually have merit.
Just to be clear if his suspicions were correct, Turkewitz reached out to the marketing company, Lead PPC, and asked for clarification and more information on their pitch. He heard back from their CEO, Grant James:
An example would be like in Dallas and Houston where we spend most of our budget on terms related to Jim Adler, Brian Loncar, ijustgothit.com, radlaw, and other terms for competitors.
What happens is that people hear a radio commercial and they can’t remember the website, so they search for what they can remember about the lawyer.
So if a guy searches for Brian Loncar, we know that they were most likely in an accident. If we rank for #1-2 on PPC, especially mobile, they click on us and call in.
A prospect typing in the name of a competitor term as opposed to “personal injury lawyer” is a much hotter prospect and further down the buying path. Additionally, these terms are much cheaper and less competitive than the broader terms everyone is bidding on and pushing up the prices.
So let those other firms who advertise and put themselves out there do all the heavy lifting, then just trade on their names (although apparently this is actually allowable under Florida law). Ignoring the legality of such advertising, I agree with Turkewitz and find it to be shady, deceptive, and sleazy. As a lawyer, do you really want to stoop to such levels? Essentially suckering clients into choosing you instead of the firm they really wanted? Is that the type of lawyer you want to be?
Turkewitz closes out with the following admonition:
…you had best remember that they become your agent when you hire them for marketing. Marketing is part of attorney ethics. If you elect to outsource your marketing then you have outsourced your ethics. And reputation. And possibly your bank account and liberty.
It sucks to be a test case.
Even if you feel like times are tough and you’re desperate to get ahead, don’t stoop to these levels. Don’t look for ways to just fit within the ethical rules and guidelines. Ethical rules are the bare minimum. You should strive to conduct yourself with an ethical standard much higher. Being a lawyer is supposed to be a noble profession, it would be nice if we could all act like it.
Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at firstname.lastname@example.org or on Twitter at @associatesmind.