The New Jersey State Bar Association will appear before the state Supreme Court and the Appellate Division as amici this month in matters related to attorney advertising and removing the “Not Established” standard in child welfare matters.
In Re Supreme Court Advisory Committee on Professional Ethics Opinion No. 735
NJSBA member Bonnie C. Frost will argue on behalf of the Association before the Supreme Court to urge reconsideration of ACPE Opinion 735, which allows attorneys to use another attorney’s name or law firm name as a key word search to redirect searches to the competing attorney’s website.
The ACPE issued a finding in 2019 that the practice of purchasing competitor’s names as keywords “is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c)” because ACPE believes these keyword-purchase websites are marked as paid or “sponsored.”
This round of briefing and oral argument follows the report of Assignment Judge Jeffrey R. Jablonski, who served as special adjudicator in the case. In a report issued in June, Assignment Judge Jablonski took limited discovery by consent of the parties “to provide any attorneys who either engaged in this advertising practice or those who might have been negatively impacted by it to answer standard form interrogatories.” Following a hearing, Assignment Judge Jablonski issued a report containing a detailed analysis and findings of fact in connection with purchasing keyword search terms from the top three internet search engines. The special adjudicator did not opine on whether the practice complained of is ethical, but concluded that the issue could be addressed using the current RPC provisions, and that no rule modifications were necessary.
In its latest round of briefing, the NJSBA noted the report supports its assertions that this practice is misleading, dishonest and prohibited and therefore unethical. The NJSBA agreed the RPCs were sufficient; however it recommended a comment to the rules to provide additional clarity to specifically state that it is a violation “to purchase another lawyer’s or law firm’s name as a keyword search term from internet search engines to use in the lawyer’s own keyword advertising.”
Frost and NJSBA Assistant Executive Director/General Counsel Sharon A. Balsamo wrote the briefs. The oral argument will be held on Sept. 24.
N.J. Department of Children and Families v. R.L.
The NJSBA will appear as amicus to urge the Appellate Division to abolish the “Not Established” finding in child welfare cases. NJSBA Past President Jeralyn L. Lawrence will argue the matter on Sept. 25.
The “Not Established” standard exceeds the Department of Children and Families’ delegated authority and contravenes the Title Nine Expungement Statute, the NJSBA said in its briefing. Currently, there is a four-tier system of evaluating child abuse and neglect allegations, which changed in 2011 from a two-tiered system. In 2011, then-Gov. Chris Christie rejected a three-tier system when he vetoed a bill the Legislature passed.
“After Gov. Christie’s veto, the Department implemented the current four-tiered system. This decision appears to be an administrative end-run around both the legislative process and the Governor’s decision, creating a categorization that was not legislatively approved,” the NJSBA said in its brief.
The Association further said that the standard for “Not Established” calls for the presence of “some evidence” of harm to the child, short of the preponderance of the evidence standard required for a “Substantiated” finding. This standard is “amorphous,” the NJSBA said, leading to “arbitrary and potentially capricious outcomes.”
The four tiers are “Unfounded,” “Not Established,” “Substantiated” and “Established.” Unfounded findings are the only ones that may be expunged. While the others are kept on file, “Not Established” findings are not disclosed on Child Abuse Record Information (CARI) background checks. Despite this, the NJSBA raised concerns that these findings remain on record and may be discoverable in related family law matters, drawing concerns that such findings could impact future custody matters.
In addition to Lawrence, NJSBA members Matheu D. Nunn and Brian G. Paul wrote the brief.