CURRENT MONTH (November 2020)
Ethics
Search Engine Optimization Manipulation
By Keith R. Fisher
May lawyers ethically purchase from an internet search engine provider or social media platform (in this space primarily Google, but also Facebook, Twitter, and Yelp) an advertising product that acquires competitors’ names as keywords and diverts search results for those names to the purchasing lawyer’s website? By paying for such keywords, the advertising lawyer or law firm seeks to attract potential clients who might not otherwise be aware of the advertiser. This is known as search engine optimization manipulation (“SEO manipulation”).
There is some uncertainty under the advertising segment of the Model Rules of Professional Conduct whether such a communication constitutes a “solicitation” under Model Rule 7.3(a), and, if so, whether it would be prohibited under Model Rule 7.3(b). Note that the advertising provisions of Rules of Professional Conduct vary widely among the States; some may, in the circumstances described, require that the word “ADVERTISEMENT” be displayed and impose other consumer protection measures.
Aside from the advertising rules, the principal ethical issues posed by SEO manipulation are whether such conduct constitutes professional misconduct under Model Rule 8.4 — “dishonesty, fraud, deceit, or misrepresentation” within the meaning of 8.4(c) or “conduct prejudicial to the administration of justice” within the meaning of 8.4(d).
SEO manipulation has spawned a variety of rulings:
- A 2010 North Carolina opinion concluded that purchasing another lawyer’s name as keyword for internet search is dishonest conduct in violation of Rule 8.4(c). Finding that dishonest conduct includes conduct that shows a lack of fairness or straightforwardness (citing In the Matter of Shorter, 570 A.2d 760, 767-68 (D.C. App. 1990), the opinion characterized intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website as neither fair nor straightforward.
- A 2016 Texas opinion rejected this approach. Though focusing primarily on the advertising rules, the Texas opinion found that use of a competitor’s name as a keyword was not dishonest, fraudulent, deceitful, or involve misrepresentation and did not violate any disciplinary rule so long as there was compliance with the advertising rules.
- Note also that in 2013, the Florida Bar’s Standing Committee on Advertising proposed an opinion that would have found this practice be a deceptive and misleading advertising technique for a lawyer, but the proposal rejected by the Board Review Committee on Professional Ethics and withdrawn by the Florida Bar Board of Governors.
- More recently, a 2019 New Jersey opinion analyzed whether (A) a lawyer is permitted to purchase certain keywords or phrases as part of the lawyer’s advertising so that his or her law firm appears in the search results and (B) a lawyer may insert (or pay the search engine company to insert) a hyperlink on the name of a competitor lawyer to divert the user from the website originally searched to the lawyer’s own law firm website. The latter was found to violate Rule 8.4 but not the former. In addition to citing the Texas and North Carolina opinions, the New Jersey committee relied on a Wisconsin intermediate appellate case (not — it should be noted — an ethics opinion of the Wisconsin bar) that actually decided a different question, namely that a lawyer’s purchase of competitor lawyers’ names as keywords in internet search engines does not violate the Wisconsin right of privacy statute because the “use” of the competitors’ names is not visible to the consumer.
The issue is of increased importance in an era when many internet users are being victimized by increasingly sophisticated manipulations and an inability readily to distinguish between search results that are organic and those that are bought and paid for. The FTC has previously issued warnings about this problem.
Currently pending before the New Jersey Supreme Court is a challenge, brought by the State Bar, seeking a stay of the 2019 New Jersey ethics opinion and plenary consideration by the Court of the issues involved. The bar and supporting amici curiae argue that lawyers operate in a position of trust and their major assets are their reputations, and that appropriating other attorneys’ names and goodwill is antithetical to the legal profession’s core values. The case has been fully briefed and was argued on November 10. A thoughtful opinion from a state court of last resort would be quite influential in other state ethics opinions that grapple with these issues.
Recent Dartmouth College Provides Guidance on Privilege Assertions and E-mails
By Keith R. Fisher
A recent federal court decision, Anderson v. Trustees of Dartmouth College, rejected over-reliance on the attorney-client privilege (“ACP”) to withhold a large quantity of documents from being produced in discovery. The court rejected most of Dartmouth College’s ACP justifications for withholding approximately 5,000 pages of documents. The case, which involves a challenge to the disciplinary process at Dartmouth by an expelled student, provides an instructive road map for lawyers making ACP assertions with regard to e-mail threads.
First, the court criticized Dartmouth for failing to make any effort to provide documents with the assertedly privileged conduct redacted. Many of the documents that the court agreed contained privileged material still had to be redacted and produced.
Second, the court scrutinized e-mails between nonlawyer college employees. The mere fact that an e-mail discussed a relevant New Hampshire statute or copied Dartmouth’s in-house counsel did not cloak the documents with ACP: They do not request legal advice, nor did the in-house lawyer offer any. Citing other decisions, the court explicated that merely copying or including an attorney as one of the recipients does not render an e-mail privileged.
Third, the court rejected Dartmouth’s blanket assertions that its employees sent the lawyer e-mails seeking legal advice. Dartmouth argued that this was part of a practice established by the Office of General Counsel with respect to employees handling student conduct matters, whereby copying a lawyer in that Office created a reasonable expectation that he or she would provide legal advice on the topic at hand. The court specifically noted the absence of any affidavit or other evidence establishing the existence of that practice and said that post hoc arguments in a memorandum of law do not meet the burden of establishing ACP. “[M]erely saying so does not make the documents privileged.”
The relatively brief opinion provides valuable guidance not only for litigation but also for the conduct of internal corporate investigations, where counsel frequently engage in e-mail correspondence with a multiplicity of employees.
