Lawyer buys competitor’s name as Google adword, other lawyer cries foul

In the great tradition of lawyers fighting among themselves to make us all look worse, we have another one going.

Ben Cowgill, a Lexington Kentucky lawyer, who launched a practice, on of all things representing lawyers on ethics grievances, after resigning as the Kentucky Bar Association’s chief disciplinary counsel last year, has gone after his chief competitor — Louisville lawyer Peter Ostermiller — by arranging to have his own name and Web site link appear when potential clients searched for Ostermiller’s name on Google.

Cowgill bought Google adwords including – Ostermiller- so he pays each time a searcher clicked on the link to his site.

In a story quoting me in this mornings Louisville Courier-Journal,s reported Ostermiller demanded last month that Cowgill end the practice, alleging that it was misleading and deceptive. “In general, I could care less about (your) various advertisements,” Ostermiller said in a June 7 letter to Cowgill that he also sent to the KBA. “However, when the advertising is using my name, that is where I must draw the line.”

Cowgill defended his use of what is known as a “sponsored link” to search results for Ostermiller, and he denied he was trying to, as he put it, “sponge on anyone's reputation.”

The Kentucky Bar Association is scheduled to consider this month the ethics of such search-engine advertising pitting the two lawyers who specialize in ethics matters.

It's scary but I came down as being on the side of the traditional lawyers saying this is wrong, regardless of whether the practice is an ethical violation:

Hofstra University law professor Monroe Freedman, a nationally recognized authority on lawyer ethics who has supported attorneys' right to advertise, likened Cowgill's approach to “putting your name on another lawyer's door. I think it's wrong.”

Louisville attorney Richard Shapero, a pioneer in local lawyer advertising, called Cowgill's effort “ingenious” but also “sneaky and underhanded.”

Oliver Barber Jr., a Louisville lawyer who doesn't advertise, said: “It is a sad world where lawyers have to represent other lawyers anyway – and doubly sad where one lawyer is trying to horn in on another lawyer's business by posting up on his Google listing.”

I was quoted as comparing such a practice to “standing in front of another lawyer's office with a sandwich board saying, `Would you consider coming down to my office instead?'”

Representatives of the American Bar Association, as well as lawyer-marketing professionals who the reporter talked to never heard of a lawyer acquiring a link to a competing lawyer's name. I am not so sure it does not happen though – especially in the personal injury area where things get pretty competitive on the search engines.

Cowgill says “It's a matter of putting one's name in the place where people are looking. If a large firm opens an office in Lexington and sees that other firms are advertising in the program of the Lexington Philharmonic, it is only natural that the new firm would want to put its own ad in the same place.”

I do not agree. Buy a sponsored link describing what you do, not using another lawyer's name – that's the same as buying an add in a program. Cowgill could not have been that proud of what he was doing in that he removed the link the day after he was called by the paper's reporter.

Is it legal to use another lawyer's name in a keyword?

As reported by the Courrier-Journal, a federal district judge in California rejected Playboy magazine's attempts to halt Web sites from selling results based on the term “playboy,” an appellate panel reinstated the case in January. And a French court last year fined Google for selling advertisements based on two travel-related phrases that were trademarked. Google says it cannot arbitrate disputes between advertisers and their search targets.

In my talking to other experts in the area of trade names and fair business practices, the question comes down to whether the use of a keyword with a competitor's name is going to mislead someone. Is the public likely to be confused when selecting a product. That would be a tough case to prove here, even for a creative plaintiff's lawyer, when someone is searching for a lawyer by name.

Is it ethical?

You would have to prove the ad was misleading.

Ostermiller contends Cowgill's sponsored link (appearing on the right side of Google's searach results) is misleading because “obviously you are not my sponsor, and a person searching for `Peter Ostermiller' is not searching for `Ben Cowgill.'” Cowgill's position is that the term `sponsored link' does not mean that he purport to be the sponsor of Ostermiller.

As Will Hornsby, the king of ethics and lawyer marketing on the Internet as far as I am concerned, told the Courrier-Journal “Ostermiller would have had a hard time proving that Cowgill's link was misleading because most search engine users know that sponsored links are advertising.” Hornsby also noted that the sponsored link doesn't affect the search result.

No good lawyer fight would be complete without the other lawyer saying you are worse than I am. So of course Cowgill says Ostermiller engaged in conduct “more nefarious” by including key words in what is known as the source code for his Web site, so it would show up when users search for terms that include “Kentucky Bar Association” and “Judicial Conduct Organization.”

Cowgill claims that what Ostermiller did is worse than a sponsored link because the source code is hidden from view and that Ostermiller “unabashedly intended to steer persons toward” his Web site “when they were actually seeking information about … the KBA or the Judicial Conduct Organization.”

I don't agree. Keywords are not hidden – to get the desired effect they are usually in the title of the page and in the text of the site. That's like saying a lawyer should not use keywords defining their practice to help search engines find their site in the search engine's index and to help prospective clients find them by getting their site a higher ranking in the search results.

For those lawyers thinking of giving it a whirl, it did not work for Cowgill. It's reported that he had “not received a single `hit' from a person following his sponsored link after performing a Google search on the term `Ostermiller.'”

Bottom line, steer clear of potential public controversy like this. This kind of exposure makes a lawyer look bad and adds to the negative public impression of lawyers.