If you’re looking to steal a rival law firm’s Google Thunder, the coast is clear (except in North Carolina) opines Professor Eric Goldman in a soon-to-be-published SSRN article, Regulation of Lawyers’ Use of Competitive Keyword Advertising.

Goldman explains that use of a competitor’s name as a keyword violates neither publicity rights nor trademark law, noting that “no trademark owner has achieved a courtroom victory in a competitive keyword advertising lawsuit since 2011.” As for legal ethics codes, Goldman takes the position that use of a competitor’s name as a keyword is not deceptive because it does not create the impression that the lawyer has any affiliation with the competitor. Moreover, Goldman points out that when consumers search a law firm name, they are often looking to find competitor ads, so “competitive keyword advertising is consistent with their expectations.”

Nevertheless, in 2010 Formal Ethics Opinion, North Carolina banned keyword ads by lawyers, finding that:
The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward.
Florida, however, took the opposite approach, and allows competitive keyword advertising so long as the resulting links are clearly labeled as advertising.

Like law, the energy and utility industry where I spend my days has traditionally been heavily regulated.  What that means is that rules for participants or relief for consumers come by way of regulatory commissions rather than statute or contract. But that model changed when utilities dipped their toes into social media where as this slide (from one of my presentations) whimsically illustrates, regulation accounts for only one fifth of the authority that companies must abide.

Likewise, as legal technology advancements enable more digital and dynamic law practices, lawyers cannot depend on legal ethics alone to govern our conduct. Instead, now that we lawyers are playing in the real world of digital commerce, we’re subject to real laws on deceptive advertising, data breach disclosures, customer privacy  (for firms that harvest big data), independent contractor laws  (for lawyers who rely on freelance help) and terms of service  (for anyone engaging social media or other third party platforms).  

The New York Journal reports on a recent Court of Appeals ruling interpreting NY Judiciary Law §470 as requiring attorneys who are not residents of New York to maintain a physical office in the space to practice. That physical office requirement means a real space – not a kitchen table or a corner in Starbucks. The requirement only applies to non-resident lawyers, New York attorneys who reside in the state aren’t similarly bound.

So how come I’m not criticizing this apparently idiotic ruling as I did five years ago when New Jersey issued a similarly restrictive reading of the bonafide office requirement (which has since been changed)? Because the New York Court of Appeals ruling is the first step towards the long and exceedingly slow journey to its demise.

More than six years ago, New Jersey based shingler Ekaterina Schoenefeld  challenged the constitutionality of New York’s office requirement, arguing that it violated the Privileges and Immunities Clause of the United States Constitution, imposing undue burdens on out-of-state New York attorneys’ ability to use their New York bar license.