Online Search Disputes Mark New Front in Consumer-Focused Firm Rivalries

Fri, September 07, 2018 5:49 AM | Akriti Dayal

Two recent cases pitting law firms against one another indicate fierce competition among certain types of firms that invest heavily in marketing efforts—and they illustrate how that competition is playing out in a modern, digital age.

A pair of recent lawsuits alleging that a law firm manipulated search engine results to steal a rival firm’s web traffic has shone a spotlight on a modern-day battleground for lawyers who generate most of their business from everyday consumers.

In one of the cases, filed in Illinois federal court in late August, criminal defense and family law firm Motta & Motta alleged that another firm, Dolci & Weiland, used website tagging and headers to confuse search engine results in a way that directed prospective Motta clients to Dolci. Outside of the online search-related allegations, the Motta case also involves a less technological allegation of unfair competition—specifically that the Dolci & Weiland firm co-opted a Motta employee who then steered potential clients away from Motta and toward Dolci & Weiland.

A second case, filed in June and resolved in late August, pitted New Jersey’s Helmer, Conley & Kasselman against Hark & Hark, which was hit with trademark infringement and unfair competition claims in New Jersey federal court.

Helmer Conley—a firm with focuses on criminal defense, personal injury and family law, according to its website—alleged that the rival Hark firm used Google’s sponsored search feature, AdWords, to attract potential clients who used the search engine to find information on Helmer Conley. The AdWords program allows advertisers, in this case law firms, to pay Google so their website appears in a section of sponsored results when a consumer searches for particular keywords. The sponsored links then typically appear above search results that are not sponsored.

Taken together, the two recent cases indicate fierce competition among certain types of firms that invest heavily in marketing efforts—and they illustrate how that competition is playing out in a modern age, in which people looking for a lawyer often turn first to Google to find one.

“For a lot of these law firms, it’s adjusting to a completely different marketplace than they were used to previously,” said Micah Buchdahl of HTMLawyers, a lawyer and marketing expert who advises law firms on marketing efforts and the legal ethics issues related to those efforts. “If you’re a plaintiffs firm in an aggressive area, if you’re operating the same way today as you were, say, six or seven years ago, you’re probably going to go out of business.”

The “aggressive” areas Buchdahl referred to typically involve consumer clients and focus on personal injury, medical malpractice, drunken driving and certain kinds of criminal cases. Firms that tend to be most active with online search marketing also tend to focus on those types of legal work, according to Buchdahl.

“They’re usually consumer-driven practices in which you play aggressively in this space,” he said. “You’re not going to have these types of issues come up with law firms that work with businesses.”

While the Illinois and New Jersey cases may be indicative of a modern-day form of competition between firms that market their services directly to consumers, Buchdahl also explained that many of the allegations in the cases related to sponsored search engine results may not actually cross the line into illegal behavior.

It’s possible that a firm seeking to avail itself of AdWords-type marketing may tread on another firm’s web traffic without necessarily meaning to. That’s what Steven Angstreich of Weir & Partners, who represented Hark & Hark in the New Jersey case, said he believes prompted that suit.

Helmer Conley alleged that some Google searches, including for “Helmer law office,” yielded links with a heading that read, “Helmer Conley Kasselman, Aggressive Criminal Defense,” but actually directed people to Hark & Hark’s New Jersey street address and telephone number.

Just a couple months after it was brought, however, the case was resolved with a consent decree in which Hark & Hark agreed to avoid the practices Helmer Conley objected to. Angstreich said Hark & Hark never intended to mislead consumers and that there was no evidence Helmer Conley lost any business to Hark & Hark as a result of the search issues.

“The issue really is a Google issue,” said Angstreich said, adding that unless a firm goes out and pays for all possibly relevant keywords, those keywords remain available in the marketplace for others to buy. “As soon as we found out about it and I got involved, we entered into a consent. … The search firm that we hired to do this got a lesson as well.”

Lawyers involved in the Illinois case did not respond to requests for comment, nor did a lawyer who represented Helmer Conley in New Jersey.

Beyond lawsuits from rivals, lawyers and firms engaged in this kind of online marketing may also run up against legal ethics rules—specifically, those that touch on honesty issues and attorney advertising, said Michael Frisch, a legal ethics expert and professor at Georgetown Law Center.

“I do think that as lawyers are consulting more with marketing people … they’ll just get more and more creative in this way,” Frisch said. “What may emerge from this is an application of an honesty rule in addition to the technical advertising rules.”

Buchdahl had a similar take on the potential legal ethics issues implicated by attempts to game search engine results. He said that as law firms grow increasingly sophisticated about online marketing, they could end up contracting with vendors that know a lot about search engine optimization (SEO), but not the full extent of a lawyer’s professional responsibility obligations when it comes to advertising.

Ultimately, Buchdahl added, the buck stops with the law firm.

“It’s always good to remind attorneys that in the end, they are responsible for the actions of their vendors,” he said. “If you hire an SEO vendor and they’re using illicit means to generate leads, in the end, you’re going to be responsible.”

Source: https://www.law.com/americanlawyer/2018/09/06/online-search-disputes-mark-new-front-in-consumer-focused-firm-rivalries/

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