In re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics, ___ N.J. ___ (2025). [Disclosure: I represented an amicus curiae in this appeal]. As Justice Noriega said in his opinion for a 5-1 majority (Justice Pierre-Louis did not participate), this appeal “presents the narrow question of whether it is permissible under the Rules of Professional Conduct (RPC) for an attorney or law firm to purchase a competing attorney’s or law firm’s name as a keyword.” The Court found it permissible, with a caveat. Justice Fasciale dissented.
Justice Noriega explained that “’[k]eyword advertising’ is a common online marketing practice whereby advertisers bid on and purchase a keyword or phrase from internet search engine providers, such as Google, Yahoo, or Bing. When a user searches for a term that has been purchased, sponsored links appear -- typically marked as ‘Ad,’ ‘Sponsored,’ or ‘Promoted’ -- above or alongside the ‘organic’ search results generated by the search engine’s algorithm.” Attorneys often use keyword advertising to attract potential clients to attorneys’ websites.
The purchase by one attorney of another attorney’s name as a keyword to drive traffic to the purchasing attorney’s website is known as “competitive keyword advertising.” The Court’s Advisory Committee on Professional Ethics (“ACPE”) was asked whether competitive keyword advertising violate the RPCs. The ACPE determined that it did not.
The New Jersey State Bar Association and the Bergen County Bar Association sought review of that ACPE decision, which the Court granted. After an oral argument before the Court, the Court appointed Judge Jablonski (then sitting as Assignment Judge in Hudson County and now a judge of the Appellate Division) to conduct a detailed analysis as a Special Adjudicator.
After extensive proceedings that Justice Noriega detailed, Judge Jablonski found that although there was some unidentified “recent research suggesting ‘most users have a difficult time telling the difference between’ organic and paid advertising search results,” he recommended no changes to the RPCs. After supplemental briefing and another oral argument, the Court issued its ruling.
The RPCs raised by the parties were RPC 7.1, 7.2, 8.4(c), and 8.4(d). RPC 7.2 permits lawyers to advertise ““through public media, such as . . . [the] internet or other electronic media,” subject to RPC 7.1. The latter Rule bans “false or misleading communications about the lawyer, the lawyer’s services, or any matter in which the lawyer has or seeks a professional involvement.” RPC 8.4(c) labels it professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Finally, RPC 8.4(d) makes it professional misconduct for lawyers to engage in conduct that is “prejudicial to the administration of justice.”
The majority held that RPCs 7.1 and 7.2 did not bar competitive keyword advertising. “The purchase of a keyword -- that is, an attorney’s attempt to raise his profile in the sponsorship section of a search result -- is not in and of itself a communication subject to RPC 7.1 or RPC 7.2…. So long as the purchasing of the keywords does not create a false or misleading suggestion that the advertiser is affiliated with the object of the search, efforts made to enhance visibility do not amount to communication under RPC 7.1 and 7.2.” The ACPE had likewise concluded that there was no violation of RPCs 7.1 or 7.2, relying on a prior Committee on Attorney Advertising decision to that effect.
The lengthiest part of Justice Noriega’s opinion addressed RPC 8.4(c). “In New Jersey, violations of RPC 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation, require a showing of deliberate and intentional conduct designed to mislead. The current record, however, contains no evidence of such intent.” The evidence that the public was or would be confused by competitive keyword advertising was unpersuasive or even non-existent. “It is unlikely that even a relatively unsophisticated user would assume that every result, including those marked ‘Ad’ or ‘Sponsored’ represents the person or firm they sought.”
Justice Noriega noted that Texas, Florida, and South Carolina had found such advertising not violative of their RPCs. Ultimately, the majority, too, found no violation of RPC 8.4(c), absent deception.
Finally, there was no violation of RPC 8.4(d). “The rule prohibits particularly egregious conduct that flagrantly violat[es] . . . accepted professional norms.” Given the majority’s conclusion that “the advertising practice here is not deceptive or misleading,” it did not “rise to the level of particularly egregious conduct” or represent “conduct that is prejudicial to the administration of justice.”
All that affirmed the ACPE. But the majority modified the ACPE ruling in one respect. Justice Noriega said that “any attorney who purchases the name of a competitor attorney or a law firm’s name as part of a keyword advertising campaign, must now include the following disclaimer on any landing page to which the paid ad directs a consumer: ‘You arrived at this page via a paid advertisement on [insert name of search engine provider] through paid keyword search results. This website and the legal business it describes are affiliated only with [insert name of purchasing attorney] and the other attorneys referenced within this website.”
Justice Fasciale would have held that “this method of deceptive advertising -- to secretly appropriate for oneself the earned good will and reputation of another lawyer or firm solely for personal financial gain -- violates RPC 8.4(c)’s prohibition against engaging ‘in conduct involving dishonesty, fraud, deceit, or misrepresentation.’” In his view, “the purchase of a competitor’s name, without consent, as a keyword search term solely for personal financial gain involves intentional misconduct,” which he labeled “leeching,” quoting a Michigan Bar Commission ethics opinion.
The dissent agreed with North Carolina, Maryland, Michigan, and Ohio opinions finding the conduct at issue unethical. Justice Fasciale saw differently the research about the extent to which internet users distinguish between paid and organic search results, research that the majority found unpersuasive. And he used the majority’s required disclaimer to support his own view. “The only reason to purchase the keyword name of another lawyer or law firm is to attract prospective clients and thus derive a benefit from the purchase. By doing so, the advertising attorney seeks to benefit from the reputation and goodwill of, or imply they are affiliated with, the competitor attorney. The majority’s disclaimer solution admits as much.”
Despite the length of this post, it only scratches the surface of the reasoning expressed in both the majority and dissenting opinions. Both deserve to be read and appreciated in full.
But Justice Fasciale had the better of the argument. The conduct at issue is “leeching” that unfairly profits from the reputation of others. The majority’s disclaimer mitigates the harm to some extent, but the better answer would have been to limit attorneys to promoting their own merits, without any piggybacking on the names of other lawyers.