Santa Clara lawprof Eric Goldman is coming out with an academic paper on the ethics of competitive keyword advertising. If you wonder what “competitive keyword advertising” is, check out my post from last October.
Eric and I both believe that there is no legal ethics issue whatsoever with the practice. Many lawyers disagree, but I’ve yet to speak to one who really “gets” what competitive keyword advertising IS, and what it IS NOT.
It’s not deceptive. It’s not misleading. It’s simply pointing out to someone who is looking up a competitor’s name that they have other options.
As Eric stresses, having choices like that is a really good thing for consumers.
Unfortunately, many lawyers take a proprietary approach to their names. They bristle at the thought that another lawyer would try to nudge their own ads into searches done for the first lawyer’s name, despite being unable to articulate precisely why such a practice should be wrong.[ref]And no, it’s not because of trademark. Trademark doesn’t let you exclude all other uses of your name; only those that create a likelihood of confusion. It certainly doesn’t offend trademark for a competitor to use your name in comparative advertising, or as a filtering signal for serving up their own ads.[/ref]
But as Carolyn Elefant asks, even if competitive keyword advertising doesn’t violate the ethics rules, should attorneys do it? Carolyn doesn’t think so, calling it the “gaining [of] an undeserved advantage on someone else’s coattails.”
I don’t agree with that reason; I’m pretty sold on Eric’s point that the practice is non-deceptive and potentially good for consumers and competition.
However, I still think most lawyers shouldn’t do it. Why? Because it’s most likely going to be completely ineffective; a distraction that delivers little to no value.
Fairly or not, it’s going to piss off your competitors. They might bring a frivolous lawsuit against you that you have to defend. They might file a pointless bar grievance you’ll have to deal with. They might engage in an e-shaming campaign over your behavior. Or they might just say snide things about you behind your back.
And what do you get for that?
Most law practices are intensely local businesses. The “name search volume” – the number of monthly Google searches for a law firm or lawyer’s name, against which your ad will be displayed – might well number in the single digits. If you are in a big market, or your competitor is well-known, they may number in the low hundreds.
For example, I checked the keyword volume for the firm of Habush Habush & Rottier, a prominent personal injury firm in Milwaukee, WI. Habush brought a lawsuit against a competitor a couple of years ago for competitive keyword advertising, which, predictably, they lost.
How many searches are done in Milwaukee for the Habush firm? In March, there were 70. And that was the best month in the last year!
It gets worse. The click-through rate for competitive keyword ads – the number of those searches for your competitor’s name that actually result in click-throughs to your website – is estimated at less than 2%. That means that even if there are 100 name searches for your competitor in a given month, you can expect all of 1-2 clicks on your ad.
That’s “clicks” – not “calls,” and certainly not “clients.”
You’ve got to ask yourself whether results that meager can possibly be worth the aggravation. For the vast majority of lawyers, the answer should be a resounding “NO.” There are far better places to focus one’s marketing and business development resources.