Lawyer’s Use of Internet Search Engine Keyword Advertising OK'd by New Jersey Supreme Court’s Advisory Committee on Professional Ethics

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics (ACPE) has issued a binding Opinion 735 Lawyer’s Use of Internet Search Engine Keyword Advertising

The Committee- whose published opinions bind the bar – subject to discretionary appeal -  responded to an inquiry: “asking whether a lawyer may, consistent with the rules governing attorney ethics, purchase a Google Adword℠ or keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. Internet search engine advertising programs permit businesses to purchase certain keywords or phrases; when a person searching on the internet uses those words in the search, the websites of purchasers of the keywords will appear in the search results, ordinarily presented as paid or “sponsored” ads.”  The ACPE found that acceptable but abjured any method that would surreptitiously direct an inquirer from the competitor’s website to the lawyer’s own site.

The issue has been addressed by Texas, Wisconsin, and North Carolina.  Like the first two the Court Committee explained that so long as the result of a network search yields a “sponsored” result The purchase of “keywords” is permissible:

The Committee concurs with the approach of Texas and Wisconsin and finds that purchasing keywords of a competitor lawyer’s name is not conduct that involves dishonesty, fraud, deceit, 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 keyword purchaser’s website ordinarily will appear as a paid or “sponsored” website, while the competitor lawyer’s website will appear in the organic results (unless the competitor has purchased the same keyword, in which case it will also appear as a paid or “sponsored” website). The user can choose which website to select and the search engine ordinarily will mark the keywordpurchased 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 Committee further finds that purchasing keywords of a competitor lawyer’s name is not conduct prejudicial to the administration of justice. The standard for conduct prejudicial to 1 In 2013, the Florida Bar’s Standing Committee on Advertising proposed an opinion that would have found it to be a deceptive and misleading advertising technique for a lawyer to purchase the name of another lawyer or law firm as a keyword in search engines so that the lawyer’s advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term. This proposed opinion, however, was rejected by the Board Review Committee on Professional Ethics and withdrawn by the Florida Bar Board of Governors.  

The ACPE  held "this Rule applies to “particularly egregious conduct,” or conduct that “flagrantly violat[es] . . . accepted professional norms.” In re Helmer, 237 N.J. 70, 83 (2019) (quoting In re Hinds, 90 N.J. 604, 632 (1982)). Purchasing keywords that are the name of a competitor lawyer is not egregious or flagrant conduct. Inquirer also asked whether a lawyer may pay Google to insert a hyperlink on a competitor lawyer’s name that diverts the user to the first lawyer’s website. The Committee finds that surreptitiously 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.