You want me to violate what law?

imposter

Who’s hiding behind that Google ad?

It isn’t often that someone emails me out of the blue and asks me to commit a misdemeanor. So I guess this wasn’t just another day.

Welcome to another edition of:   outsource your marketing = outsource your ethics. Today, perhaps, we can add to that equation that you might end out surrendering your money, license and liberty as well.

The email came to me from a Utah digital marketing firm called Lead PPC, from its CEO Grant James. I get pitches from marketeers all the time (“first page of Google!!!”) and generally just delete before reading, but I look sometimes to see if there’s any new scam under the sun.

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.

In addition to the prospect of criminal and civil problems, there is also the prospect of action against my license under the Code of Professional Responsibility for false and deceptive conduct (Rule 7.1(a)(1)), implying that the better-known lawyer is associated with my firm (Rule 7.1(c)(2)) and using “hidden computer codes that, if displayed, would violate these Rules” (Rule 7.1(g)).

Grant James - LeadPPC

Grant James, CEO of LeadPPC

Figuring  that my understanding of what he suggested might just, perhaps, be the result of a poorly written email, or maybe that I didn’t understand the technology, I replied to Mr. James seeking clarity:

Hi Grant.

I read through your email and didn’t understand something:

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. 

What does this mean?

Simple enough, right? But his response was to make clear that I had it right the first time, that this was a dishonest, misbegotten, bastardization of legal marketing. He responded by giving me the names of prominent Texas trial lawyers he had misappropriated:

Hey. Yeah sorry if this was a little vague or confusing.

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.

The strategy works best in larger cities where law firms are advertising heavily on radio, tv, etc.

Texas, we have a problem.

Leaving aside the marketeer for a moment, what lawyer would do such a thing to another? I wanted to know, but since I’m in New York the Google ad words didn’t pop up in my market when I searched.

But, funny enough, I happen to know ace Dallas criminal defense lawyer blogger Mark Bennett. And Mark has written his fair share of postings about shady marketing tactics.

Screen Shot 2014-05-21 at 11.20.02 AM

So he Googalized those more prominent names that Grant James had kindly told me he had misappropriated, and up popped the website (txcarwreck.com) of attorney Ben Abbott in the Google ads.  You can see one of the to the right, where Brian Loncar was Googled. Bennett has screen shots of others.

You will notice that Bennett searched only for the name, and didn’t add lawyer, car accident, or any other popular buzzword.  Just the name. And up pops Ben Abbott’s ad.

As it happens, swiping the name of another person in order to exploit it is also a problem in Texas. It sure looks like Ben Abbott can be sued, and I’m guessing Grant James and his SEO company as well.

Now I’m also going to guess, simply because I fancy myself a kind and beneficent person, that Grant James is utterly ignorant of the law. I think I’m being charitable when I wrote that he probably knows that swiping the names of others to trade on them is a pretty scummy black hat tactic, but that he doesn’t know the legal ramifications. Or he knows but just doesn’t care.

But what would be the excuse of attorney Ben Abbott?

While I know that black hat marketing techniques go on, and have written about them in the past, I never really guessed it would come at me in such a bold and obvious way.

Who, I wanted to know, would he target? So I asked and he responded:

I would need to work together with you to put together a list of 15-20 of the top competitors in NY.  It would be the same guys who advertise on radio, tv, and billboards.

So then I moved the conversation to problems with his scheme, with a nice open-ended query to get his thinking, to see how he could justify this:

I don’t know, Grant, the whole thing about using the names of other lawyers to promote myself doesn’t really sound kosher.

What came back was a very long email about how Google operates and what Google allows and doesn’t allow and Google this and Google that, as if Google was a law of some kind and could be waved in front of judge and jury as a defense.

BenAbbottTexasLawyer-Standing

Ben Abbott, Texas lawyer

To Ben Abbott, who should know better, I asked:

Mr. Abbott:

I’m writing an article about your using the names of other Texas trial lawyers as part of your advertising. This includes Jim Adler and Brian Loncar.

When their names are Googled, your ad pops up. Would you care to comment about why you think this is acceptable marketing?

Thank you.

He hasn’t written back yet. If he does, I may update this.

This is, by the way, part of the Wild West of marketing. A year ago in Wisconsin, under presumably different laws, a court held that stealing someone’s name to use as a hidden advertising keyword might past muster in a civil suit, as in that state (unlike New York) there was apparently no statute. There was no word in Eric Goldman’s Forbes column about the ethical implications. (Update: Under Florida law, this is not an ethics violation. I think is should be.)

But I think the message is pretty clear that, once again my friends, when those marketeers come-a-callin’, 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.

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16 Responses Leave a comment

  • Julio Fernandez 2014.5.22 at 12:48 | Quote

    I’m a marketing guy… I’ll let those of you with law experience take care of the law issues. But don’t we have precedent in the USA that brand XYZ can bid for trademark names ABC and competitors 123 as long as they do not use them on the ad copy? (Legislation is different in each country, in some, you can use your competitor on your Google Ad copy, like “Top 10 reason why XYZ is faster than ABC”) How is this different? Julio

  • Warren 2014.5.22 at 16:48 | Quote

    While it seems sleazy on the face of it, I have a hard time seeing how buying keyword ads violates the law. Since the keyword law firm’s name isn’t used anywhere in the ad or URL, and the ad is clearly marked as such, it seems more like well-placed advertising than misrepresentation.

    It doesn’t seem substantially different from someone buying a half-page ad in the lawyer section of the Yellow Pages. In that case, someone might be searching for Turkewitz Law, but be enticed to call whoever placed the ad instead. Same thing for physical advertising – if another personal injury attorney buys an ad on a bus bench just outside your office door, it could persuade a potential client to call the other attorney instead, but there is no misrepresentation by the attorney or confusion of the client.

  • Eric Turkewitz 2014.5.22 at 17:25 | Quote

    While it seems sleazy on the face of it, I have a hard time seeing how buying keyword ads violates the law.

    Civil Rights Law section 50 is simply written, and in my opinion this appears as a request to violate the statute.

    That is aside from the whole smarmy nature of it the concept.

  • Mark Bennett 2014.5.22 at 23:07 | Quote

    So you search for Brian Loncar, and up pops an ad for “your accident lawyer,” with nothing indicating that it’s not Loncar, and you don’t think that’s deceptive?

  • Erik H. 2014.5.27 at 10:25 | Quote

    Slimy, yes, absolutely. It is trying to capitalize on Loncar’s presumably-expensive radio ads in order to get business for someone else. That is way over my ethical line.

    But actually deceptive, in that context? Not really, at least in my opinion: you have Brian Loncar’s obvious link–actually, two links–and then you have a competing link. I don’t really think that suggests that the links are the same, because Google doesn’t have that sort of authority.

    As a result, I wouldn’t personally put it over the “deceptive” line, especially since the eventual landing page has “Ben Abbott” and not “Brian Loncar” up at the top. But I can see where you would disagree and, obviously, I don’t think it’s a good idea in any case.

    To me, this is the online equivalent of standing outside someone else’s law offices and trying to get clients as they walk in the door: “I notice you’re en route to Pomp & Law, Inc. Before you go to see Big Attorney, have you considered hiring me?”

    It’s slimy, it’s not done among normal folks, but I don’t think it should necessarily be illegal.

  • Erik H. 2014.5.27 at 10:31 | Quote

    Also: I do not think that you are correctly interpreting “uses for advertising purposes.” The right of publicity is designed to prevent implied endorsement. But “Google returns that result when I search for Brian Loncar” is not an implied endorsement.

  • Eric Turkewitz 2014.5.27 at 13:20 | Quote

    I don’t really think that suggests that the links are the same, because Google doesn’t have that sort of authority.

    Google is not the law, nor it is the Code of Professional Responsibility.

    To me, this is the online equivalent of standing outside someone else’s law offices and trying to get clients as they walk in the door: “I notice you’re en route to Pomp & Law, Inc. Before you go to see Big Attorney, have you considered hiring me?”

    By appropriating someone’s name, it is more like putting a billboard on property that belongs to their target.

  • Eric Turkewitz 2014.5.27 at 13:24 | Quote

    Also: I do not think that you are correctly interpreting “uses for advertising purposes.” The right of publicity is designed to prevent implied endorsement.

    Well that seems to be an excessively narrow definition. Do you have any case law to back that up?

  • Erik H. 2014.5.28 at 13:45 | Quote

    @Eric Turkewitz
    Nope! (Or, more accurately, “not without spending more time on this than I have to spend.”)

    But the reason that I come to this conclusion in my own mind–which may be wrong, I admit–is by imagining some hypotheticals.

    Pepsi could run the Pepsi Challenge, right? And I could say to you “hire me instead of Alan Dershowitz, because I am a better trial lawyer than Alan.” In fact, I could open up an “alandershowitzstinks” web page and use it to solicit business (albeit risking a libel suit.) The New Yorker can advertise a column on Michael Jordan, as part of its magazine advertising.

    Or, to hit a bit closer to home: You, of course, would use other people’s names on your blog, even if they ask you to stop. that is (and should be) legal, even though your blog is probably construed as advertising.

    All of those are situations in which one party is “using” the name of another to advertise. All of those things are, in my view at least, clearly permitted.

    The most reasonable interpretation which would make those work is one that matches my proposed limitation.

    If not, where does that end, precisely? It seems that it would require at least some sort of categorical distinction based on intent. IOW, it’s OK if my post makes your blog into the top ranked Google hit for Alan Dershowitz, and you therefore get a ton of billion dollar cases… but it’s not OK if you pay Google to put this post at the top of the list

  • Eric Turkewitz 2014.5.28 at 15:11 | Quote

    In fact, I could open up an “alandershowitzstinks” web page and use it to solicit business (albeit risking a libel suit.)

    I wouldn’t worry about a libel suit, but rather, using that as a subterfuge to violate Civil Rights Law section 50. If that page were to look like a pitch for business, that would be the problem.

    All of those are situations in which one party is “using” the name of another to advertise. All of those things are, in my view at least, clearly permitted.

    All of your examples have another purpose in addition to the potential that it is merely a subterfuge for using another person’s name for trade. But simply using the name of another to force your ad to pop up when folks are looking for that other person, does not. That, I think, constitutes using the other person’s name for advertising and trade within the meaning of the statute.

  • Steven Sweat _ Los Angeles Personal Injury Attorney 2014.5.29 at 21:37 | Quote

    I couldn’t agree with you more. Marketing firms have no clue about rules of professional responsibility or legal ethics. The rules that apply to lawyers are unique to the normal “dog eat dog” rules of business.

  • andrews 2014.5.30 at 09:23 | Quote

    The difference between the Pepsi Challenge and atty XXX paying to have his ad in the results of searches for YYY is simple. The Pepsi Challenge is a competition, Pepsi is claiming to be better than the competing fizzy beverage.

    Atty XXX is not claiming to be better, or different, or in any way distinguishable from atty YYY. Just the opposite: atty XXX is trying to fool people looking for YYY into coming to him, instead.

    If Abbott’s ad had said “I am not Loncar” in the search result, the outcome would be different because we could at least argue that it was a comparison. There might be other ethical issues with atty comparative advertising, but they are not germane to our inquiry.

  • Andre 2014.6.3 at 10:05 | Quote

    Eric, this is a great piece of content.

    Firstly, I provide PPC services within and outside of the legal industry. And I agree with your views here unreservedly. I find the practice unsavory to say the least!

    A couple of questions if I may?

    A client specifically requests such practice of bidding on competitors, and despite warnings of possible trademark infringement where applicable as well as ethical issues, they remain insistent. Could I as a provider be pursued in any legal recourse taken?

    In many instances ads may appear without actually bidding on the firm or attorney name … (as Google deems it to be relevant to the search query). Should one leave these as is, or actually add them as negative keywords, which would be a more proactive approach?

  • Eric Turkewitz 2014.6.3 at 21:12 | Quote

    Eric, this is a great piece of content.

    I hate the word content. It is a word only used by marketeers. See:

    “We Help You Publish Content”

    As to your other questions, I decline the invitation to give solicited legal advice over the web, for reasons that should be obvious.

  • Andre 2014.6.4 at 08:47 | Quote

    Eric, I was asking an opinion, considering you opened the door with your article/insight/blog post (are those acceptable) …. just as you provide an opinion on the word or subject of content

    nevertheless I enjoyed your insight here, thank you!

  • Lucas 2014.6.5 at 23:57 | Quote

    I am a law student AND a legal marketer. It seems what you’re dealing with here is a person who simply doesn’t understand the rules for attorneys. But then again, what kind of perverted mind would if they weren’t an attorney themselves?

    My attorney-clients ask me to do things which go against the rules of professional responsibility frequently. Frankly, it’s out of ignorance 98% of the time, I inform them of the rule, and the matter is settled. I’m always shocked how few attorneys take the time to actually learn the rules. However, I would like to point out something before every attorney who reads this post starts swearing other attorneys are bidding on their name – if you add a modifier to the name (attorney, lawyer, etc.) ads that did not target the other attorney’s name will show up. Also, if an attorney’s name is extremely popular (i.e. James Sokolove); it’s possible Google may associate his/her name with the same category and display ads… despite no bids on the name. This isn’t common, but it does happen.

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