In a closely watched ethics decision balancing attorney marketing practices with professional ethics, the New Jersey Supreme Court held that lawyers may permissibly engage in “competitive keyword advertising,” purchasing a competitor attorney’s name as a keyword on internet search engines, provided they include a clear disclaimer on the landing page of the resulting website. The ruling affirms the Advisory Committee on Professional Ethics (ACPE) Opinion No. 735, with a key modification requiring greater transparency for online users.
The case arose from concerns that attorneys could exploit competitors’ reputations by purchasing their names as Google or Bing search terms, leading to prominent “sponsored” ads for the purchasing attorney when a user searched for the competitor. The New Jersey State Bar Association and Bergen County Bar Association argued that such conduct violated RPC 8.4(c) (prohibiting dishonesty, fraud, and misrepresentation) and misled consumers. After a lengthy remand for fact-finding and expert testimony, including studies on consumer confusion and the mechanics of online search auctions, the Court ultimately concluded that the practice, without more, does not inherently violate the RPCs.
Writing for the majority, Justice Noriega emphasized that keyword purchases are not “communications” under RPCs 7.1 or 7.2 unless the ad content is itself misleading, and that purchasing a keyword alone does not imply affiliation or deception. However, to safeguard against consumer confusion and maintain the integrity of the profession, the Court mandated a standard disclaimer on any landing page reached through such paid ads. The disclaimer must clearly state that the user arrived via a paid advertisement and that the site is affiliated solely with the advertising attorney.
Justice Fasciale dissented, arguing that keyword advertising using a competitor’s name constitutes intentional deception and misappropriates the goodwill of others. He urged the Court to adopt the Bar’s position that the practice violates RPC 8.4(c) as inherently misleading and damaging to professional integrity.
The decision can be found here.
For additional information, contact Robert J. Cahall, Esq. and/or Igor Konstankevich, Esq.
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