February 17, 2020
NJSBA urges review of ethics opinion regarding competitor keyword purchases
The New Jersey State Bar Association (NJSBA) joined the Bergen County Bar Association in urging the Supreme Court’s Advisory Committee on Professional Ethics to review Opinion 735. The opinion found no issue with an attorney purchasing a competitor attorney’s name as a keyword in an internet search to ostensibly redirect a consumer to the purchasing lawyer’s website. The finding is one of four ethics opinions issued nationally that addresses the issue—Texas and Wisconsin found no issue with the practice; North Carolina found the practice unethical. The NJSBA filed a petition, authored by Bonnie C. Frost, for review of ACPE Opinion 735.
“The NJSBA is concerned that this conclusion condones gamesmanship over professionalism where, if an attorney has enough money to spend on advertising, an attorney can use a competitor’s name to redirect a consumer to that attorney’s website instead of the site the consumer originally intended,” said the NJSBA in its brief.
The submission highlighted concerns about the basis for the underlying opinion, which may have been based on inaccurate presumptions that a website of the keyword purchaser’s law firm and the purchaser’s law firm would both appear in the resulting search. “This may not always be the case,” pointed out the NJSBA.
Ultimately, the NJSBA challenged the opinion as too narrow, urging further analysis on the question based on misleading communications pursuant to RPC 7.2(a) and misleading the public in violation of RPC 8.4(c). “Because the conclusion in Opinion 735 relies on various assumptions that may or may not be accurate, the NJSBA contends that the inquiry requires additional study and broader input,” said the NJSBA.
The issue is ripe for review, noted the NJSBA, given the evolving technology of internet search campaigns. In its brief, the association demonstrated how difficult it is to identify paid advertising versus the organic listing by referencing an article analyzing Google’s new search results, which appear to have little visual distinction between advertisements and search results. “Under these circumstances, it becomes more imperative that the Supreme Court consider the issues the NJSBA and the Bergen County Bar Association raise in their petitions for review of ACPE 735, and allow for greater discussion and debate by the entire bar,” said the NJSBA.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.