Capitol Report: New ACPE Opinion Addresses Advertising in the Electronic Era

By NJSBA Staff posted 08-08-2019 12:09

  

Last year, a New Jersey State Bar Association (NJSBA) committee examining the attorney advertising rules acknowledged that technology has opened new avenues for attorney solicitations and advertising that have the potential of colliding with the current advertising and ethical rules, particularly those intended to prevent direct solicitation during times when an individual is most vulnerable, like in the immediate aftermath of a disaster. In recommending that the 30-day ban on solicitations following a mass disaster be expanded to apply to all accidents, the ad hoc committee noted that technology changes provide new reasons for such a ban that did not exist when a similar proposal was considered almost a decade ago. Electronic devices open up a whole new world of potential solicitation that requires specific examination and debate.

A recent inquiry to the Advisory Committee on Professional Ethics(ACPE) illustrates the ethical issues that are likely to arise in connection with the new era of obtaining clients through internet advertising.

In ACPE Opinion 735, the committee was asked if a lawyer can purchase a keyword through Google that is a competitor lawyer’s name, so that when individuals search for the competitor lawyer, the purchaser lawyer’s name appears at the top of the search results as well. In addition, the committee was asked if a lawyer can purchase a hyperlink in the name of a competitor lawyer to divert the user directly to the purchaser lawyer’s website. The committee concluded that the current ethics rules allow the purchase of a keyword, but not the hyperlink.

In analyzing the issues, the ACPE looked at Rules of Professional Conduct 1.4 and 8.4. RPC 1.4, requiring that lawyers advise a prospective client how, when and where the client can communicate with the lawyer. The committee determined that the purchase of advertising does not constitute communicating with a client. Therefore, the purchase of a keyword does not implicate the rule.

RPC 8.4 addresses misconduct and prohibits an attorney from engaging in conduct that involves dishonesty, fraud, deceit or misrepresentation, or conduct that is prejudicial to the administration of justice. Relying on the assumption that, after purchasing a competitor lawyer’s name as a keyword, the websites of both the competitor law firm and the purchaser law firm will appear in the search results of the competitor lawyer’s name, the committee concluded that a potential client will have a choice of which website to select. There would be no deception, fraud or dishonest conduct involved. Purchasing a hyperlink, however, that would direct a potential client to the purchaser lawyer’s website, when the client believes they are clicking on a link to the competitor lawyer’s website, is deceptive and misleading and, therefore, violates RPC 8.4.

In its written opinion, the committee noted that both issues were also directed to the Committee on Attorney Advertising. That committee, however, governs attorney ‘communications,’ and did not find that purchasing of keywords and hyperlinks, albeit resources that will be used by a prospective client to find a lawyer, were communications. Therefore, the committee concluded the inquiry fell outside of its scope.

Whether a particular solicitation is viewed through the lens of the advertising committee or the ACPE, the NJSBA ad hoc committee recommended that the association , along with other groups in the legal community, examine the new frontier of client solicitation with the aim of recommending appropriate boundaries to balance a lawyer’s right to free speech with the need to protect vulnerable individuals from being taken advantage of. The committee specifically noted that increasing use of geotargeting advertising that allows pop-up ads on the phones or other electronic devices of individuals in a particular area, such as near a hospital or near an accident scene, begins to blur the lines between prohibited direct advertising and permitted indirect advertising. ACPE Opinion 735 represents one of the first opinions that begins to clarify those lines in applying current court rules to new electronic advertising issues.

The full ACPE opinion can be accessed at njcourts.com. Follow-up on the ad hoc committee’s recommendation to expand the attorney solicitation ban can be viewed at njsba.com.

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