Why The Proposed Florida Regulation of Lawyer And Law Firm Websites Will Fail

The Florida Bar Board of Governors is trying to regulate advertising by regulating lawyer and law firm websites. Currently, websites are treated as information a client has requested.

Now, some members of the Board of Governors want to make websites subject to Rule 4-7.2. As reported in The Florida Bar News, “Rule 4-7.2 bars the use of testimonials, language describing the quality of a lawyer or law firm’s services, references to past successes, or language promising results, among others.” However, this information is available to legal consumers when they ask for it.

Chobee Ebbets, chair of the special Bar committee proposing these changes, said lawyers could “still post such information, but it would have to be in a restricted area of their Web sites accessed only by the viewer taking an affirmative action indicating he or she desired further information.” Florida Bar News, January 1, 2007.

The special committee has three proposals on the table, according to the News:

1. “[A]sk viewers for e-mail addresses and then send them the information — like providing an electronic firm brochure.”

2. “[S]et up a secure part of the Web site and require viewers to register and pick a password to access that additional information.”

3. “[H]ave a “button” on the Web site home page asking the viewer if he or she wished to receive more information. By clicking on the button, they would be taken to the secure part of the site with additional information.”

As reported in the News, “someone using a search engine, such as Google, to look for a lawyer must not be able to directly reach the pages in the secure area with information that does not meet advertising rules.”

Rule 4-7.2 and the Internet

Rule 4-7.2 was designed for radio, television and print ads. Unlike print, radio and television ads, websites also have search terms, meta tags, page titles, abstracts, keywords and more. Consumers normally view much of these web components, which are critical to search engine optimization (SEO). SEO is what causes a website to be found when a consumer performs internet searches. It is unknown at this time if the special committee considered web components for regulation.

Weblogs, or Blogs, are not traditional lawyer or law firm websites. Rather they are First Amendment protected websites which contain political and other commentary. In fact, many experts in the field of marketing now believe that blogs are more important than traditional websites. It is not clear if the special committee intends to regulate blogs.

Ad Sense Farms are Pay Per Click (PPC) websites, regardless of the search engine used. Ad Sense is a program by Google which allows a web designer to create hyperlinks on one website in order to draw users to other websites. The site owner receives money for each Ad Sense click a user makes. Ad Sense Farms have no real purpose other than to scam users into clicking these PPC hyperlinks. Since legal terms pay more per click than many other search terms, there are many different types of Ad Sense Farms associated with law related search terms. They produce little to no value for legal consumers.

Hiding What Consumers Want

Any of the proposals would require virtually Florida law firm to redesign their firm website in order to hide certain content from over 230 Internet search engines – even though consumers are actively searching for it. This content would still be available, but consumers would be unable to find it because this content would be hidden from search engines. As a result, most Florida law firms would disappear from organic search listings. Consumers would find that their searches of organic content would yield out of state law firms, Ad Sense Farms, blogs, and irrelevant content. The lawyers that consumers actually want to find would be virtually invisible. Searching for a Florida lawyer on the Internet would become extremely burdensome for the consumer.

E-mail Registration Proposal: Angry Spammed Consumers

At some point, most Internet users have chosen to ‘register’ to a seldom used website only to be rewarded with spam. Nothing has made Internet users angrier than spam. Therefore, legal consumers would be reluctant to give a law firm website an e-mail address. Internet users will register for paid subscriptions to financial, news and similar websites, but intensely resent registration at websites they may want to visit only a couple of times or less. They are tired of registration scams and spam. The very presence of this proposal demonstrates that at least some of the members of the committee are ignorant when it comes to understanding the Internet, how it is used, and what consumers expect.

Cost to Lawyers and Law Firms

Each lawyer website in Florida would have to be redesigned in order to comply with this proposed rule. The cost to each lawyer and law firm would be staggering. The cost to each firm would vary according to many technical factors. However, a reasonable estimate can be made based upon what it costs to have an inexpensive web designer build and/or optimize a website. Thus a conservative estimate would therefore range between $1,500.00 to $25,000.00. These numbers are skewed to the low end.

This estimate does not address the cost to Bar members by increases in Bar membership or other fees due to enforcement. There would be a substantial cost involved with either hiring or training personnel to review the content of millions of lawyer websites. A cost analysis is beyond the scope of this article, but it is rather easy to foresee that the cost of enforcement would be substantial by even the most conservative estimates. This cost would ultimately be borne by Bar members.

Technological Failure Due to Weblogs

Lawyer websites have been bypassed by blogging – in less time than it has taken the Bar to come to terms with websites. Unless a lawyer/blogger is incredibly dumb, these proposals cannot be implemented on blogs, since blogs are clearly 1st Amendment non-commercial speech. Blogs can legitimately contain all of the content the special committee seeks to regulate and publish it on the Internet. Think of Legal War Stories Online. The search engines can pick up the content, send legal consumers to the blog, and then legal consumers just click a hyperlink to the lawyer’s Florida Bar Rule 4-7.2 compliant website.

Technologically savvy lawyers would clobber their competitors. Thus the Florida Bar would have an expensive set of new regulations, the proposals would fail to produce the result intended, and consumers would be harmed by technologically savvy lawyers who may not have the skill set the legal consumer actually desires.

Technological Failure Due to Ad Sense Farms

You will probably not ever see a genuine lawyer or law firm website with Ad Sense or other hyperlinks designed to generate PPC revenue. No lawyer wants to earn relatively few dollars on a website hyperlink in exchange for losing far more dollars by sending a fee generating case to another lawyer. This does not stop Ad Sense Farms.

Ad Sense Farm owners are not lawyers, are not practicing law, and are not regulated by the Florida Bar. These sites are created with generic legal content (often as a ‘Business’ or ‘Local’ directory) and highly optimized so that consumers will find them if the search for common legal terms. The Ad Sense Farm owner simply uses a tool to determine what legal consumers are searching for. They then create an Internet ‘directory’ which is optimized to rank high in the organic (free) search results when a consumer types in the appropriate legal terms. The legal consumer is then duped into clicking on an inorganic (PPC) hyperlink, often vainly searching for a lawyer or law firm to meet their legal needs. Instead of finding a law firm or an attorney to help them, they usually wind up going through several Ad Sense Farms in a row, becoming more and more frustrated because their search terms are yielding garbage.

Ad Sense Farms are already a problem for consumers. These proposals would block legitimate lawyers from the organic (free) search results and would drive the Ad Sense Farms to the top of the organic search rankings.

Overseas Websites and Exploiting the Competition

The regulatory nightmare faced by over 80,000 Florida lawyers can be summed up by an experiment you can conduct in your own law firm.

Have a member of the firm try to remove a website located in an eastern European nation or Asia. You have already contacted another law firm to secretly hire a web designer to clone your website, make some unflattering changes, and then made sure that all search engines block the site so it will not hurt your firm. The owner of this ‘pirate’ web domain is, of course, anonymous. They will not be able to shut the offending website down.

The above exercise is actually entertaining until the Bar approves any of the three proposals and you end up defending a Bar Complaint. You haven’t done anything wrong, but you and your firm could be answering a Bar Complaint, and unable to take the offending website down. The Bar faces a dilemma: If you win your Bar Complaint, could an unscrupulous lawyer put one up in the same manner, take advantage of a fully optimized site, and then use the same “It wasn’t me” defense? Either way, the intended purpose of the Rule is thwarted, and good people are harmed.

Do all of the Special Committee Members Understand the Internet?

“[B]oard member Gary Leppla said that potential clients can look for specific types of cases and geographic locations in the Yellow Pages, and the Bar regulates what language can be used in that source. The same standards should apply on Web sites, he said, unless there is a specific request for further information.” – Florida Bar News, January 1, 2007.

Comparing the Yellow Pages to websites is comparing apples to electricity. When considered together with these three proposals, it appears that at least some members of the special committee do not understand even the most basic aspects of the Internet.

Conclusion

No lawyer should promise a specific result that may not be obtainable. Each of these proposals destroy the legal consumer’s power to search the Internet for Florida legal services. They victimize legal consumer by hiding information, force consumers into unproductive and potentially dangerous searches, and make the easy prey for Ad Sense Farms – often while the legal clock is ticking. Every Florida lawyer will be financially penalized by proposals that will not work. Bloggers will skip past the Rule’s provisions and render any of the proposals obsolete prior to the effective date. Internet legal consumers will select the most technologically savvy lawyers rather than the best lawyer for their specific legal need.

Implementing any of these proposals would make over 80,000 Florida lawyers look like they belong to the most technologically illiterate bar association in the nation.

Respectfully Submitted,

Stephen G. Cobb
Florida Bar No. 0835171
www.CobbLawFirm.com