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N.J. Ethics Panel Tackles Lawyer Ads Using Competitors’ Names

Aug. 9, 2019, 5:17 PM

New Jersey lawyers can purchase a keyword of a competitor’s name so that a search of the name shows their own firm website as well as the competitor’s, the state ethics committee said in a recent advisory opinion.

The opinion was dated June 25 and released in August.

This doesn’t violate attorney advertising, communication, or misconduct rules, the committee said.

But paying a search engine to insert a hyperlink on a competitor lawyer’s name that diverts the user to the first lawyer’s website does violate attorney misconduct rules, it added.

States are beginning to come to terms with how advances in technology are affecting how lawyers can advertise. The American Bar Association last year updated its attorney advertising rules, and last month Maine became the first state to adopt them.

Businesses can buy certain keywords or phrases so that when someone searching online uses those words, the websites of purchasers of the keywords will appear in the search results as paid or “sponsored” ads, the committee explained.

More than one business can buy the same keywords or phrases, it added.

Purchasing a competitor’s name as a keyword doesn’t violate attorney advertising rules because these apply to lawyers’ “communications,” and buying a keyword of a competitor’s name isn’t a “communication,” the committee said.

It also doesn’t violate attorney communication rule, it said. Under professional ethics rule 1.4, a lawyer has to explain to a prospective client how, when, and where the client may communicate with the lawyer, the committee said.

The communication rule doesn’t apply here because there’s “no interaction, much less communication, between the lawyer who purchases a competitor lawyer’s name as a keyword and the person searching on the internet,” the committee said.

The committee also considered whether buying a keyword of a competitor’s name violates lawyer misconduct rules but determined it doesn’t implicate dishonesty, fraud, or misrepresentation.

“The websites of the keyword purchaser’s law firm and the competitor’s law firm will, presumably, both appear in the resulting search,” the committee said.

The user can then choose which website to select and the search engine will mark the keyword purchased website as paid or “sponsored,” it said, noting that Texas and Wisconsin agree that this isn’t deceptive, while North Carolina has ruled it is.

But it’s deceptive for a lawyer to pay a search engine to insert a hyperlink on a competitor’s name that diverts the user to the first lawyer’s website, the committee said.

"[S]urreptitiously redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website,” it concluded.

The opinion is N.J. Advisory Comm. on Prof’l Ethics, Op. 735, 6/25/19.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com; Simon Nadel at snadel@bloomberglaw.com

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