New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)
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.
More Posts About Keyword Advertising
* Another Competitive Keyword Advertising Lawsuit Fails–Dr. Greenberg v. Perfect Body Image
* The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
* Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
* Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF
* The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
* Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
* Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
* Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America
* Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
* The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
* Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion
* Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
* Brief Roundup of Three Keyword Advertising Lawsuit Developments
* Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
* 1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
* FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
* Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
* More Evidence Why Keyword Advertising Litigation Is Waning
* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
* FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
* Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce
* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
* Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI
* Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert
* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit
* Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
* Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising
* Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal
* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
* Damages from Competitive Keyword Advertising Are “Vanishingly Small”
* More Defendants Win Keyword Advertising Lawsuits
* Another Keyword Advertising Lawsuit Fails Badly
* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!
* Florida Allows Competitive Keyword Advertising By Lawyers
* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law
* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally
* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
* Google Defeats Trademark Challenge to Its AdWords Service
* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown