TECHNOLOGY
Advertise With Care
Should you use a search engine marketing company?
By Paul H. Cannon
Search engine marketing, or SEM, companies help you generate
business on the internet by getting your website a higher ranking on
search engines such as Google, Bing, or Yahoo. While a good one can
improve your rankings, if you hire the wrong one you could get penalized
by Google so that you never show up in searches. More importantly, if
you are not careful, there may be ethical considerations.
Lawyer websites are subject to advertising rules. However, the average
SEM company is not run by a lawyer. This can create a number of problems
because the person leading your online marketing activity might not know
the advertising rules you are subject to.
Rules a Non-Lawyer Might Not Know
Rule 7.02 of the Texas Disciplinary Rules of Professional Conduct
contains a list of prohibited forms of advertising that have been deemed
misleading. Anyone who hires a marketing firm of any kind to act for
them should ensure it complies with this rule in all online profiles,
directories, and webpages.
For example, while a great marketer knows that everyone wants “the
best,” Rule 7.02(a)(4) prohibits a lawyer from advertising in the public
media in a way that “compares the lawyer’s services with other lawyers’
services, unless the comparison can be substantiated by reference to
verifiable, objective data.” Thus, an unwary marketer could accidentally
get his or her client in hot water by touting them as “the best lawyer
in Texas” or by stating that attorney “x” should be hired because “he or
she is the best.”
Every good marketer also knows that many people want to see great
results. But Rule 7.02(a)(2) prohibits lawyers from advertising their
big verdicts unless they specifically lay out certain details about the
facts of the case and the attorneys’ fees and expenses the client paid
to the lawyer. Those $1 million verdicts do not have nearly the client
appeal when they say underneath: “the fees were $400,000 and the
expenses were $250,000.”
Search Engine
Optimization Issues
Search engine optimization, or SEO, is the marketing field that
focuses on making your website appear higher in the ranks when someone
runs a search on Google or another search engine. It involves writing
quality material on the specific subject you seek to rank well for both
on your website (on-site SEO) and on other websites such as trade
publications (off-site SEO). It includes acquiring citations and links
back to your site from those relevant to your field, expertise,
location, or practice and obtaining positive reviews from colleagues and
clients. Gaining industry awards and recognitions for your work also
helps in this process.
Black Hat Search
Engine Optimization
The point of the ranking system used by Google and other search
engines is to provide the most relevant information to the consumer when
he or she runs a search. Black hat SEO is when people attempt to game
the search engine to gain higher rankings quickly.
In the past, businesses seeking to rank higher would create text links
that linked specific works to their website from other directories.
These directories, whose sole goal was to charge a fee to give a link,
popped up in troves across the internet. Lawyers could link the words
“car accident lawyer” in one and “personal injury lawyer” in another to
help themselves rank better when someone searches for those terms.
Google has penalized this practice with a big ranking drop and
de-indexed many of these directories. However, if you are not careful,
some companies still operate this way to generate short-term results
(and get your money) before Google catches them and penalizes your
website. Once you incur a ranking penalty, it can take months and
sometimes years of removing links and disavowing bad ones to get your
website’s credibility back.
In 2016, the Professional Ethics Committee for the State Bar of Texas
addressed the practice of keyword advertising offered by search engine
companies. Specifically, Opinion 661 found that simply using the name of
a competing lawyer or law firm as a keyword does not necessarily violate
the Texas Disciplinary Rules of Professional Conduct. However, lawyers
would be well advised to familiarize themselves with Opinion 661 and its
ramifications before embarking upon an advertising campaign using search
engine optimization.
Online
Directories
Good directories exist that are relevant to your field or location.
The legitimate ones will generally allow you to place your company name,
address, and phone number along with a link to your website and
sometimes a description of what your firm does. But pay close
attention—the link and description may get you into trouble if you
simply allow an SEM company to create these unmonitored.
Case Referral Websites
Case referral websites may be independent or operated as a required or
optional part of an online directory. A pure case referral website,
however, differs from an online directory in that it promises to refer
cases directly to the lawyer for a fee. They often call themselves
pay-per-lead services and some even take and screen calls before sending
them to you. These are not treated the same under the Texas Disciplinary
Rules of Professional Conduct. Many of these websites may instead comply
with the American Bar Association Model Rules of Professional Conduct
(that allow paying a pay-per-lead fee to online sites in some
circumstances) and will freely tell you this. Rule 7.03(b) of the Texas
Disciplinary Rules of Professional Conduct allows for reasonable
advertising fees.
ABA Rules vs. Texas
Rules
The ABA Model Rules have been adopted in some form by all states
except California. But complying with the ABA Model Rules does not equal
compliance with the Texas Disciplinary Rules of Professional Conduct.
There is a specific comment to ABA Model Rule 7.2 that, on its face,
allows for some types of pay-per-lead online case referral
services:
Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer…
The Professional Ethics Committee’s Opinion 573 distinguishes between
a permissible online directory service and an impermissible lawyer
referral service. (Compare and contrast to Opinion 561.) It states that
to be a permissible service, the online referral service must select the
lawyers by a non-discretionary computerized process (i.e. no
pre-screening of cases or recommending a lawyer), the service must make
clear lawyers are paying for the service, the fee charged by the service
must be reasonable under 7.03(b), the service must place no restrictions
that in effect create a referral of a particular type of case to a
particular lawyer, the lawyer must only communicate with clients who
have requested such communication, and the initial communication must be
identified as advertising information and disclose that the
communication is being sent after identification of the client through
the service based on geographic area and legal practice area, and that
the lawyer has paid a fee to participate in the service. It is the
advertising lawyer’s duty to check and make sure the online referral
service meets the criteria set forth in Opinion 573.
A lawyer simply cannot afford to allow an SEM company to run unchecked
advertising campaigns. The consequences of these non-lawyers doing what
they would normally do with a client not in the legal profession could
result in the lawyer being penalized by Google. Disciplinary liability
under the Texas Disciplinary Rules of Professional Conduct is another
consideration.TBJ
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PAUL H. CANNON is a shareholder in and online marketing manager for Simmons and Fletcher. He has been practicing personal injury law since 1995 and was certified in personal injury trial law by the Texas Board of Legal Specialization in 2005. For more information, go to simmonsandfletcher.com. |