New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)

August 14, 2019 · by Eric Goldman · in Marketing, Publicity/Privacy Rights, Search Engines, Trademark

In 2016, the Texas Bar issued an opinion decisively blessing competitive keyword advertising by lawyers. (Note: I define competitive keyword advertising as buying a rival’s name/brand as the trigger for ads without displaying the name/brand in the ad copy). At the time, I predicted that other state bars would fall in line behind the opinion, so eventually the Texas rule would prevail across the nation. That hasn’t turned out exactly as I’d hoped. For example, the Florida Bar had blessed competitive keyword advertising before Texas did, but last year it went through some drama about rolling back the rule–only to regulate, but not ban, competitive keyword advertising.

In better news, New Jersey now has apparently joined Texas and fully endorsed competitive keyword advertising (it also endorses the Habush v. Cannon opinion from Wisconsin). In a brief opinion dated June 25, 2019 (ACPE #735), the NJ Advisory Committee on Professional Ethics explains why competitive keyword advertising doesn’t violate MRPC Rules 7.1 (the purchased keywords aren’t a “communication”), 1.4 (I didn’t even understand how this provision could implicated), or 8.4 (labeled keyword ads aren’t deceptive, fraudulent, dishonest, egregious or flagrant). Accordingly, the opinion cleanly declares that:

a lawyer may, consistent with the rules governing attorney ethics, purchase an internet search engine advertising 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

There’s nothing ambiguous about that. But, unfortunately, the opinion didn’t stop there. Addressing a related inquiry, the opinion reaches a second conclusion:

A lawyer may not, however, consistent with the rules governing attorney ethics, insert, or pay the internet search engine company to insert, a hyperlink on the name or website URL of a competitor lawyer that will divert the user from the searched-for website to the lawyer’s own law firm website

Huh? The second conclusion appears to conflict with the first, at least implicitly. The whole point of competitive keyword advertising is to display ads with links that consumers click on. If the lawyer can display the ad, but the links are unethical, doesn’t that make the opinion internally inconsistent?

I’ve read, and reread, this inscrutable second conclusion trying to figure out what technology the opinion tried to address. The opinion says that it assumes, without concluding, that search engines provide such an option, so maybe this is an advisory opinion about non-existent technology. The opinion also clarifies that it refers to “surreptitiously redirecting a user from the competitor’s website to the lawyer’s own website.” With these sparse clues, here are some of my guesses about what the second conclusion might be referring to:

if the ad copy contains the rival lawyer’s name or URL, and people can click on that name/URL but are linked to the advertiser’s website, then perhaps that would constitute the referenced “diversion.” For example, the top line of a keyword ad is the clickable ad title, so if the advertiser used the rival’s name in the ad title, it might be a “hyperlink on the name” of the rival. If correct, this interpretation takes NJ’s rule closer to Florida’s new rule regulating the ad title line. What gives me pause is that it would have been trivially easy to expressly ban ad copy references to the rival, so this seems like an unnecessarily indirect way of getting there. That makes me doubt this hypothesis. Still, a highly conservative reading of this opinion would be that competitive keyword ads are OK so long as the rival isn’t referenced in the ad copy–or at least not in the ad title.
Maybe the drafters were thinking of programs where an advertiser can buy the right to insert a URL on phrases in editorial articles. I’m not sure if anyone still runs programs like this, but it used to be possible to buy a rival lawyer’s name so that when it appeared on the publisher’s site, a reader whose mouse hovered over the name would be given the option to click and go to the advertiser’s paid-for URL.
Perhaps the drafters hypothesized some kind of URL-swapping or clickjacking service where an advertiser could pay to surreptitiously swap URLs to redirect consumers from their intended destination to the advertiser. I don’t think any legitimate services actually offer this, but I would agree that such conduct is not permissible if it existed.

If you have other theories of what technology is being banned by the second conclusion, I’d love to hear them.

Obviously, this would be a better and more useful opinion if the second conclusion didn’t implicitly conflict with the first. It would be fabulous if the committee corrected this opinion to clean up the possible overlap. Still, because I can distinguish the two conclusions, and because the opinion so clearly seems designed to permit competitive keyword advertising, I’ll count this opinion as an endorsement of the Texas rule.

If so, that leaves North Carolina as the outlier bar that still bans competitive keyword advertising. I continue to believe that N.C.’s rule is anachronistic and will not be judged kindly by history. As a result, I continue to support any efforts to reconsider N.C.’s rule. The N.J. opinion provides fresh data for that reconsideration.

For more on this topic, see my 2016 article, Regulation of Lawyers’ Use of Competitive Keyword Advertising.

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New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)

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