Article Reviewed By Jason McMinn, JD
Jason McMinn is a lead personal injury attorney at McMinn Law Firm.
While strictures against deceptive or exploitative marketing are nothing new for Texas lawyers, a new generation of fraudulent online “Find A Lawyer” websites, and stricter coronavirus-prompted online advertising policies combine to mean law firms must manage their advertising with an even greater level of vigilance than before the pandemic.
Fraudulent “Find A Lawyer” Websites
The rise of legitimate legal service information aggregator services like Avvo and FindLaw has come with an unintended collateral enterprise: fraudulent online lawyer directories positioned to lure people looking for a lawyer as well as lawyers seeking client prospects.
These sites claim to connect lawyers and potential clients. Usually prospects are encouraged to browse the information and attorneys listed for free, and lawyers pay the website to list their name, address, practice areas, and services in the directory.
But rather than allow the prospect to contact the listed lawyer directly, these sites collect legal service inquiries and offer them for sale (usually through lead generation brokers) to a wide range of lawyers and law firms which may or may not be listed on the fraudulent website.
Case in point: in Fort Worth, TX, personal injury lawyer Travis Patterson called the number next to his own listing on proaccidentinjurylawyers (dotcom) and was told that he was unavailable.
A class action lawsuit has been filed against the website by a group of attorneys who claim that “Defendants and their end-user attorney customers are exploiting the plaintiffs’ and putative class’ names and reputations for their own commercial gain, intending to confuse and deceive the public by drawing on Plaintiffs’ and the putative class’ goodwill in the marketplace” (1).
Google Ads Policies Tightened During Pandemic
Unfortunately, hawking false cures during a crisis of disease or healthcare is a persistent tactic of bad-actor companies.
By using deceptive ads to link their products to potential relief from the pain or loss accompanying a pandemic, unethical businesses attempt to capitalize on widespread anxiety and uninformed consumers.
Starting in January 2020, thousands of ads falsely tying products and services to COVID-19 prevention or treatment appeared in search results on Google. In an April 30, 2020 post on the Google Ads & Commerce blog, Scott Spencer, VP for Ads Privacy and Safety, points out there was a:
“…sharp spike in fraudulent ads for in-demand products like face masks… significantly above market price, misrepresented the product quality to trick people into making a purchase or were placed by merchants who never fulfilled the orders.” (2)
In response, Google temporarily banned the use of “coronavirus” and “COVID-19” in ads (primarily pay-per-click / PPC) appearing in search engine results. Further, Google’s ad policy enforcement mechanisms blocked or removed:
“tens of millions of coronavirus-related ads for … price-gouging, capitalizing on global medical supply shortages, making misleading claims about cures and promoting illegitimate unemployment benefits.” (3)
While none of Google Ads’ pandemic-driven policy adjustments specifically were directed at law firms, lawyer pay-per-click campaigns were impacted: ad changes took longer to be approved, and law firm ads temporarily couldn’t use the prohibited words in ads, even when to do so represented a genuine offering.
The federal government also stepped in to penalize companies attempting to profit off products and services making fraudulent promises related to coronavirus.
The Federal Trade Commission (FTC) reports “sending warning letters to companies that may be violating the FTC Act, to warn them that their conduct is likely unlawful and that they can face serious legal consequences, such as a federal lawsuit, if they do not immediately stop.”(4)
Advertising Restrictions in Texas Lawyer Rules for Professional Conduct
While COVID-19 advertising policies still are evolving, policies outlining what is and is not permitted in Texas lawyer advertising have been in place since 2005.
These rules for advertising apply to all lawyers practicing in Texas. Noncompliance with the rules can result in a grievance with the Texas State Bar.
The Advertising Review Department (5) of the State Bar of Texas reviews “attorney and law firm advertisements and solicitation communications as required by Part VII(6) of the Texas Disciplinary Rules Professional Conduct…(effective 6/1/05).”
While they cover several aspects of lawyer advertising, highlighted rules (7) include:
- Prohibition against saying a lawyer “specializes” in a practice area unless they have been certified by the Texas Board of Legal Specialization in that practice area;
- Requirement that lawyers report certain details of a case when advertising the success of that case; and
- Restrictions applying to the presentation of cumulative case results or settlement amounts.
In addition, the 86th Texas Legislature passed SB 1189 (effective 9/1/2019) containing mandates and prohibitions (8) for TV ads for legal services regarding medications or medical devices.
With a changing ad landscape, lawyers must apply additional diligence when advertising for potential clients.
- Obrien, John (3 August 2020). “Personal injury lawyer tries to call himself through referral service, is told he’s unavailable” Legal News Line Retrieved 12 August 2020.
- Spencer, Scott (30 April 2020).“Stopping bad ads to protect users” Google Ads and Commerce Blog Retrieved 11 August 2020.
- See reference above (2) for full details.
- “Coronavirus Advice for Consumers” Federal Trade Commission. Retrieved 13 August 2020.
- Advertising Review State Bar of Texas. Retrieved 13 August 2020.
- Texas Disciplinary Rules of Professional Conduct Retrieved 13 August 2020.
- TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT. Retrieved 13 August 2020.
- Frequently Asked Questions
Regarding the State Bar Advertising Review Department’s Implementation of S.B. 1189, 86th Legislature Texas State Bar. Retrieved 13 August 2020.