The New Jersey State Bar Association once again urged the Supreme Court to declare unethical the practice of attorneys purchasing the names of other attorneys for use as key word searches to redirect web traffic to their own sites. In support of this request, the NJSBA submitted a supplemental briefing following the Special Adjudicator’s findings following discovery and a hearing on Opinion 735 by the Advisory Committee on Professional Ethics (ACPE). NJSBA Assistant Executive Director and Counsel Sharon Balsamo and Bonnie C. Frost wrote the brief.
“The Special Adjudicator’s findings, submitted to the Court for its consideration after a lengthy discovery process and hearing, illustrate how and why attorneys engage in the practice and what they gain from it,” the NJSBA said in its briefing. “Importantly, the Special Adjudicator’s findings conclude that potential clients are likely not able to distinguish between internet search results that are paid advertising, including as a result of purchased keywords, and those organic results that appear in direct response to the search terms a user entered.”
The Association’s briefing focuses on the ACPE’s finding that the practice of using another attorney’s name as a keyword search to redirect web traffic was not in violation of the Rules of Professional Conduct because such advertisements appear as “sponsored” or as an advertisement, distinguishing it from “organic” results. “The user can choose which website to select and the search engine ordinarily will mark the keyword-purchased website as paid or ‘sponsored.’ This is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c),” the ACPE said in its June 25, 2019, opinion.
Following the issuance of Opinion 735, the NJSBA filed a petition for review urging reconsideration of the opinion in light of “evolving technology” and with consideration of the Rules of Professional Conduct holding attorneys “to the highest standards of professionalism.”
The Bergen County Bar Association also filed a petition for review at the behest of an attorney, Richard H. Weiner, who personally experienced this practice and submitted discovery to the special adjudicator regarding his experience. The Supreme Court appointed Hon. Jeffrey R. Jablonski as special adjudicator, and he oversaw discovery and a hearing. Following the hearing in October 2023, Judge Jablonski issued a “Report of the Special Adjudicator” with 18 factual findings.
The NJSBA’s supplemental briefing highlights the experiences of attorneys and a marketing professional – all of whom demonstrated how the purchase of competitors’ names as key words resulted in confusion for the consumer and presumably deceptive practices in order to redirect web traffic to the purchaser’s website. Six states have rejected this practice as problematic and not in keeping with an attorney’s ethical obligations. Of the three states that permit the practice, two permit this practice premised on the notion that users can distinguish an advertisement from an organic search and the other examined the issue from a privacy argument and not an ethics issue.
The Supreme Court will consider supplemental briefing, which includes submissions from the Association, the Bergen County Bar Association, the New Jersey Civil Justice Institute and the ACPE.