Untangling the Wicked Web: The Marketing of Legal Services on the Internet and the Model Rules

Currently, Rule 7.1 states, "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."69 In traditional advertisements, it is relatively easy to determine when a statement is made. However, with a web site, the situation is more complicated. Because of the low cost of correcting a web site, a lawyer's site might be seen as a continuing statement. How much time must elapse before a lawyer can be said to be making a false and misleading statement under Rule 7.1? Once again, the Model Rules are silent on this unique aspect of the Internet as an advertising medium.

As previously mentioned, Internet users often use web search engines to find a web site related to a particular topic. These search engines usually employ a "crawler" or "spider" that periodically searches web sites and reads the actual language on the site, including any site "meta-tags."70 The information is then compiled in an index. When using a search engine, a user actually searches the index, not the web itself, for the keywords he or she has typed in.71 Web sites are then ranked based on relevance to the keywords depending on the algorithm used by the search engine.72 The keywords and meta-tags of a web site, and their use by search engines to respond to users' queries, do not have any analogy in traditional advertising media. Not surprisingly, it would be very possible for a lawyer's web page to abuse the use of keywords and meta-tags to give his or her web site an artificially high relevance rating in response to an engine's search.

One of the easiest ways that some web sites gain artificially high relevance ratings is through the use of repeated keywords. This practice is known as "keyword stuffing."73 Sometimes this stuffing is accomplished by simply creating a block of text at the bottom of a web site that repeats keywords that a lawyer believes prospective clients might enter into a search engine.74 For example, a personal injury attorney might write a block of text that repeats the words: lawyer, accident, car, worker's compensation, damages, hospital, slip, snow, court, insurance, whiplash, and settlement. Such words would not be inherently misleading, especially if the lawyer dealt with auto accidents and workers' compensation cases. However, if the lawyer were to repeat the name of a rival personal injury attorney, or an area of the law in which he or she was not competent, the practice would no longer seem so innocent.75

Such blocks of text look strange and may alert a web-savvy prospective client. To get around this problem, the text could be repeated in the meta-tags which are read by search engines but do not affect the appearance of a web site.76 Additionally, the words could be written on the web site in a color matching the background making the text all but invisible.77 Many web search engines are becoming increasingly sophisticated in recognizing repeated phrases and discounting them.78 However, as web search engines become more sophisticated, so will the techniques to trick them. Just as lawyers are currently prohibited from making false or misleading communications, the misleading use of nearly subliminal repetitive keywords, meta-tags, and invisible ink should also be prohibited.79