Keyword ‘piracy’ doesn’t violate ethics rules, experts say

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A couple of Wisconsin personal injury lawyers had the chutzpah to use the last names of rival attorneys for keyword advertising on the Internet.

A court decided last month that the enterprising lawyers didn’t violate state privacy law, and experts now say that such a marketing scheme probably doesn’t violate professional rules of conduct governing lawyer advertising, either.

“As long as [the keyword ad] is not misleading, as long as it is clearly identifying that this is another firm that is providing the same kind of legal services, it doesn’t seem problematic to me,” said Professor Rebecca L. Tushnet of the Georgetown University Law Center in Washington, D.C.

Longtime Wisconsin ethics guru Dean R. Dietrich agreed.

“It’s hard to fit this issue into an ethics consideration,” said Dietrich, a past chair and current member of the Wisconsin State Bar’s Professional Ethics Committee.

The web advertising issue was brought to the fore in an epic turf battle between two Milwaukee personal injury firms, Cannon & Dunphy and Habush Habush & Rottier. Led by attorneys Robert L. Habush and Daniel A. Rottier, the Habush firm is one of the big dogs in the Wisconsin legal community.

William M. Cannon and Patrick O. Dunphy have reason to be proud of their own firm, but back in 2009 they were searching for innovative ways to improve the firm’s visibility in the market.

They came up with a doozy of a plan, one that involved taking advantage of the Habush firm’s high profile.

Beginning in 2009, Cannon & Dunphy bid on the keyword search terms “Habush” and “Rottier” through the search engines Google, Yahoo!, and Bing. By successfully bidding on those terms, Cannon & Dunphy was assured that the link to the firm’s website would appear as a sponsored link, just above the link for the Habush firm’s site, in response to an Internet user’s search of the terms “Habush” or “Rottier.”

Pretty nifty, eh?

For those who doubt whether such marketing is worthwhile, Tushnet explained that keyword ads may be particularly effective in drawing in potential clients who aren’t committed to a certain firm and who just may be beginning their search for a lawyer based on a TV commercial or billboard they remember.

“The ad might well work because the [prospective client] may actually be interested in an alternative lawyer in that instance,” Tushnet said.

Of course, attorneys Habush and Rottier were not exactly thrilled that their names had been effectively pirated as part of a competing firm’s web advertising scheme. So the two attorneys and their firm sued Cannon and Dunphy and their firm in Milwaukee County Circuit Court.

The 2009 lawsuit alleged that the Cannon & Dunphy firm violated a Wisconsin privacy statute that prohibits the use of any living person’s name for advertising purposes without the person’s consent.

In 2011, Circuit Judge Charles F. Kahn Jr. agreed that Cannon & Dunphy had used the names Habush and Rottier for the purposes of advertising or trade by bidding on them as keyword search terms, but concluded that there was no violation of the law because such an invasion of privacy was not unreasonable in the Internet Age.

Last month, the Wisconsin Court of Appeals essentially reached the same conclusion. In upholding the trial court’s judgment in favor of Cannon & Dunphy, the appeals court concluded that the privacy statute at issue did not prohibit bidding on someone’s name as a keyword search term.

Writing for a unanimous three-judge panel, Judge Paul Lundsten decided that Cannon & Dunphy’s use of the terms “Habush” or “Rottier” fell within the realm of lawful proximity advertising. The judge specifically cited the example of a lawyer placing a Yellow Pages ad in proximity to the phone listing of competing lawyers.

“[W]e think the strategy used by Cannon & Dunphy here is akin to locating a new Cannon & Dunphy branch office next to an established Habush Habush & Rottier office when the readily apparent purpose … is to take advantage of the flow of people seeking out Habush Habush & Rottier because of the value associated with the names Habush and Rottier,” Lundsten wrote. (Habush v. Cannon)

Dietrich was not surprised that the court determined that Habush & Rottier didn’t have a legal claim based on the violation of a right to privacy.

“Wisconsin’s privacy statute doesn’t lend itself to strong interpretation in favor of the individual that is claiming a breach of privacy,” said Dietrich, an attorney with Ruder Ware in Wausau.

Tushnet, who teaches intellectual property, said that Habush & Rottier found itself in the same shoes as so many plaintiffs in other fields who have unsuccessfully claimed they’ve been victimized by unfair web advertising strategies trading on their reputation.

“The decision means that lawyer advertising isn’t special for these kinds of purposes,” Tushnet said. “Over the past few years, defendants have won a lot of similar cases because courts are starting to recognize that consumers understand what web advertising is all about.”

Dietrich also agreed that Cannon and Dunphy probably didn’t violate any ethics rules. Wisconsin, like all states, prohibit lawyer advertising that is false and misleading.

“There really doesn’t seem to be an ethics issue here because the appearance of the sponsored link at the time of the search in and of itself is not false and misleading,” Dietrich said.

Tushnet said that some state bars are aggressively attempting to regulate lawyer advertising on the Internet and that she wouldn’t be surprised if there were attempts in some states to regulate the use of keyword ads by attorneys.

However, she predicted that those efforts would largely fail.

“My suspicion is that, if an ad not actually misleading, I doubt if there is a constitutional way of limiting it,” Tushnet said.

William Cannon did not return calls.

Robert Habush declined to be interviewed and would only say that his firm is seeking review of the case by the Wisconsin Supreme Court.

So stay tuned.