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September 23, 2019

NJSBA weighs in on poaching clients by purchasing internet keyword advertising

Permitting lawyers to purchase a competitor lawyer’s name as a keyword in an internet search as part of a search engine’s ad campaign in order to promote the lawyer’s law firm “condones gamesmanship over professionalism,” said the New Jersey State Bar Association (NJSBA) in its brief to the New Jersey Supreme Court last week. The NJSBA urged the Court to review Opinion Number 735 by the Advisory Committee on Professional Ethics (ACPE), which opined that the practice does not violate the Rules of Professional Conduct. The brief was written by NJSBA member Bonnie C. Frost, of Einhorn Barbarito.

“The NJSBA believes a critical question exists about whether it is ethical for one lawyer to buy another lawyer’s name for the purpose of a keyword search, thereby capitalizing on someone else’s goodwill and reputation,” said the NJSBA in its brief. “While Opinion 735 attempts to answer that question, the NJSBA believes it is based on several presumptions which may not always be accurate and could yield questionable conclusions.”

The opinion, issued on June 25, analyzed whether a lawyer is permitted to purchase certain keywords or phrases as part of the lawyer’s advertising so that his or her law firm appears in the search results. The ACPE further analyzed whether a lawyer may insert or pay the internet search engine company to insert a hyperlink on the name of a competitor lawyer to divert the user from the website originally searched to the lawyer’s own law firm website. While the ACPE found that inserting a hyperlink on a competitor lawyer’s name that diverts the user to the first lawyer’s website violates RPC 8.4(c), it found that the purchase of keywords or phrases that lead the user to a competitor lawyer “does not involve dishonesty, fraud, deceit, or misrepresentation, and is not conduct prejudicial to the administration of justice.” The ACPE opined that this activity did not violate RPC 8.4(c) or (d).

“The keyword purchaser’s website ordinarily will appear as a paid or ‘sponsored’ website, while the competitor lawyer’s website will appear in the organic results (unless the competitor has purchased the same keyword, in which case it will also appear as a paid or ‘sponsored’ website),” said the ACPE in its opinion. “The user can choose which website to select and the search engine ordinarily will mark the keyword-purchased website as paid or ‘sponsored’.” The NJSBA took issue with this analysis, questioning whether the consumer understands the distinction between sponsored and organic search results.

The Bergen County Bar Association joined the NJSBA in urging the Court to review the opinion. “When used ­ethically and honestly, keyword advertising permits attorneys to disseminate truthful and helpful information to the public and, as a corollary, enables potential clients to locate qualified attorneys to assist them,” wrote Andrew Cevasco of Archer & Greiner and Thomas Loikith of Harwood Lloyd in a brief filed on behalf of the county bar. “However, use of a competitor lawyer’s name as a keyword has the opposite effect—it allows the purchaser lawyer to benefit from an unfair and unwarranted association because it misleads the public.”

The Committee on Attorney Advertising, which also considered these inquiries, found that purchasing a competitor lawyer’s name as a keyword does not violate the rules governing attorney advertising. It cited to RPC 7.1, which only applies to lawyers’ “communications.” That committee concluded that the purchase of a competitor lawyer’s name is not, in and of itself, a “communication.”

Similarly, the ACPE determined that RPC 1.4 did not apply in this situation. RPC 1.4 provides that a lawyer shall inform a prospective client of how, when and where the client may communicate with the lawyer. “There is no interaction, much less communication, between the lawyer who purchases a competitor lawyer’s name as a keyword and a person searching on the Internet.” See ACPE Opinion #735, p. 2.

For a full copy of Opinion 735, visit NJcourts.gov.

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. 

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