The Ohio Board of Professional Conduct recently issued two advisory opinions on lawyer advertising. Online advertising is discussed in Opinion 2021-04 Competitive Keyword Online Advertising. Advertising as a specialist is addressed in Opinion 2021-05 Communication of a Lawyer Specialization in a Field of Law Not Designated by the Supreme Court.
Opinion 2021-04 Competitive Keyword Online Advertising advises that a lawyer or law firm may not purchase the name of another lawyer or law firm for use in competitive keyword online advertising. The Opinion was requested by a lawyer in a personal injury firm that advertises through an Internet search engine provider, such as Google and Yahoo.
The opinion explains that it is common practice for search engine providers to permit lawyers to bid on keywords, that when a consumer enters the keyword, the advertising firm’s name is displayed toward the top of the search results. Search engine providers do not prohibit advertising lawyers from purchasing the name(s) of another competing law firm. The Opinion says that in most instances, keywords can be purchased by more than one advertiser. This may result in a consumer searching for a firm to enter the name of one firm but intentionally or inadvertently select a competing firm resulting from the use of competitive keyword advertising.
The Opinion discusses Ohio Rule of Professional Conduct Rule 7.1 which governs all lawyer communications, including advertisements permitted by Rule 7.2. The Opinion states that the simple act of purchasing a keyword, including another lawyer’s name, does not communicate anything about the purchasing lawyer or his or her services and purchase and use of a keyword in advertising does not result in the dissemination of any information about the lawyer or by the lawyer that is not already publicly available. If the information on the purchasing lawyer’s own website is not false, misleading, or nonverifiable, the communication complies with Rule 7.1.
The Opinion next looks at Rule 8.4(c) finding that a lawyer’s purchase of a competitor lawyer’s name for use in keyword advertising may constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c). Further, even if the consumer is not deceived into selecting the advertising lawyer’s website, that lawyer has at the very least violated Rule. 8.4(a) by attempting to violate Rule 8.4(c).
The proposed conduct may also be contrary to Rule 8.4(h), which prohibits a lawyer from engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law. The Opinion says that the use of another lawyer’s name, without consent, to increase traffic to one’s own website and to further one’s own financial and business interests displays a lack of professional integrity and calls into question the lawyer’s trustworthiness, sense of fairness to others, and respect for the rights of others, including those of fellow practitioners.
Opinion 2021-05 Communication of a Lawyer Specialization in a Field of Law Not Designated by the Supreme Court finds that a lawyer may state or imply that she or he is a specialist in a field of law only if that field of law has been designated as an area of lawyer specialization by the Ohio Supreme Court. A communication by a lawyer that he or she is a specialist in a field of law not designated by the Ohio Supreme Court is misleading.
This Opinion was requested by a lawyer representing several lawyers in an Ohio law firm that concentrates its practice in truck safety law. Lawyer(s) in the firm are certified by the National Board of Trial Advocacy (“NBTA”) in “truck accident law,” which the firm wants to advertise as “Lawyers NBTA board-certified in Truck Accident Law,” without reference to the Ohio Supreme Court or its Commission on the Certification of Attorneys as Specialists.
The Opinion notes that pursuant to its constitutional authority to regulate the practice of law in Ohio, the Ohio Supreme Court adopted rules regarding the designation of areas of lawyer specialization and established the Commission on the Certification of Attorneys as Specialists to administer Gov. Bar R. XIV. If a lawyer is certified by an accredited organization as a specialist in field of law and if that field of law is designated by the Ohio Supreme Court as a specialty area, the lawyer may hold himself or herself out as a specialist.
Further the Opinion explains that the Commission has accredited four organizations, including NBTA, to certify specialists and designated 18 fields of law as specialty areas. “Truck accident law” is not one of them. A petition to designate “truck accident law” as an area of specialization was denied by the Commission in 2019. See Fields of Law Subject to Specialization Designation in Ohio.
The Opinion discusses that pursuant to Rule 7.4 a lawyer is permitted to communicate that he or she is a specialist in an area of law if the lawyer has been certified as a specialist by a certifying organization in an area of law designated by the Ohio Supreme Court and conversely, may not communicate a specialty in an area of law that has not been designated by the Ohio Supreme Court.
The Opinion also indicates that communication by a lawyer of an area of specialization that has been certified by an accredited organization, but not designated by the Ohio Supreme Court implicates Rule 7.1, which prohibits a lawyer from making or using a false, misleading, or nonverifiable communication about the lawyer. A statement that the lawyers in the firm are certified by the NBTA in the area of “truck accident law” is true, but misleading because it implies that the area of law is one designated by the Ohio Supreme Court as a specialty in Ohio through the same regulatory process the Court has utilized for 18 other designated specializations.
The Opinion states that prospective Ohio clients expect that Ohio lawyers advertising a specialty are permitted to do so pursuant to the Ohio Supreme Court formal designation of the area of specialization. With that, there is a substantial likelihood that a potential Ohio client could erroneously conclude that communication of the NBTA certification in “truck accident law” also means the specialty has been designated by the Ohio Supreme Court. The opinion concludes that a lawyer should not state or imply that he or she is a certified specialist unless and until the area of specialization is designated by the Ohio Supreme Court pursuant to its constitutional authority to regulate the practice of law.
With the increased use on online communication and advertising to reach prospective clients, these Opinions emphasize the relevance of applying the advertising rules to these practices. If you have questions about advertising or any loss prevention topic, please do not hesitate to contact me at OBLIC. We’re here to help!
Gretchen K. Mote, Esq.
Director of Loss Prevention