NJ Supreme Court Blesses Lawyers’ Competitive Keyword Ads (With a Baffling Caveat)

May 29, 2025 · by Eric Goldman · in Marketing, Search Engines, Trademark

We are at the terminal stage of a 250-year old democracy, so what’s on the priority list for regulators of lawyers? In New Jersey, it’s competitive keyword advertising by lawyers. Seriously? When I wrote on this topic in 2016, I thought the issue was already resolved. Instead, a decade later, we’re still processing lawyer angst on this topic as our democracy crumbles. Jeezus. #Priorities.

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Last week, the New Jersey Supreme Court issued an opinion on the legitimacy of competitive keyword advertising by lawyers. The majority lays out its conclusion:

the practice of purchasing a competitor’s name as a keyword does not, in itself, constitute a violation of the RPCs. However, consistent with our past treatment of emerging forms of attorney advertising, we now require that attorneys employing this strategy include a clear and conspicuous disclaimer on the landing page of their website when a user clicks on such a paid advertisement.

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To help navigate the topic, the NJ Supreme Court commissioned a special adjudicator to explain the technology and business practices associated with competitive keyword advertising by lawyers. The report surely helped the court, though it left many questions unanswered.

The majority says that purchasing keyword ads isn’t a regulated marketing activity under the Rules 7.1 and 7.2 of the Rules of Professional Conduct:

A sponsored link for an attorney’s services, labeled as an advertisement, merely advises an internet user (a) of a potential competitor of the searched-for name and (b) that the potential competitor paid a fee for its link to be included among the results for the user’s search. The purchase of a keyword — that is, an attorney’s attempt to raise his profile in the sponsorship section of a search result — is not in and of itself a communication subject to RPC 7.1 or RPC 7.2. Indeed, it is a form of proximity marketing, whereby businesses intentionally position themselves near a market leader to benefit from their overflow customers.

Proximity marketing is not automatically a communication; nor is it intrinsically deceitful or fraudulent. Attorneys who position themselves next to a more successful competitor, whether digitally or physically, may find themselves in a position to offer services to clients that their more successful counterpart turned away or could not retain; such is the nature of competitive advertising

For my explanation of this “overflow” theory, see my (uncited) Brand Spillovers paper from 2009.

The majority also says that competitive keyword advertising isn’t a problem under Rule 8.4(c):

In New Jersey, violations of RPC 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation, require a showing of deliberate and intentional conduct designed to mislead. The current record, however, contains no evidence of such intent. The submissions to the Special Adjudicator, while earnest, provided at most speculative claims about whether attorneys engaged in deliberate deception. Crucially, none of the attestations demonstrate that the advertising attorneys intentionally sought to mislead prospective clients.

The majority explains that consumers searching for a lawyer don’t expect to get only the lawyer’s website in their search results:

Petitioners’ arguments presuppose that consumers searching for a specific attorney’s name expect a singular, precise result, and are misled when other links appear. But that assumption fails to account for how search engines actually function. Simply entering an attorney’s full proper name or a law firm’s name will rarely yield a precise, exclusive result. Basic familiarity with a search engine would reveal that a solitary, definitive result from such a search is an anomaly….

users typically understand that further refinement is necessary to locate the intended subject. Indeed, the very existence of keyword advertising underscores the reality that users understand basic searches — limited to general attributes like a name — are often insufficient to yield precise, targeted results. It reflects a recognition that effective searches typically require additional, more specific terms — or key words — to narrow the field…

Realistically, a search including only a proper name will likely retrieve hundreds of results of little value to a user. Even the most unsophisticated user seeking a specific lawyer will recognize the need to improve their search by targeting words like “lawyer,” “attorney,” “firm,” “law,” or “esq.”…it is unfair to assume that a precise match will always appear as the top result and that any intervening results should be labeled “misleading” or “deceitful.”

For more on consumers expecting to get multiple results for trademarked keywords, see my Deregulating Relevancy paper from 2005. The majority is making a lot of unsupported empirical assumptions about consumer search behavior, despite the special adjudicator’s report.

The majority continues:

there is no evidence in this record that the use of keyword advertising misleads or deceives the public. Purchasing a competitor’s name as a search term does not divert users to a misleading website or falsely imply affiliation. It simply ensures that an attorney’s sponsored ad appears alongside search results — a practice common across industries and widely understood by consumers navigating the internet. The website links in question in this matter identified only the advertiser’s firm by name and did not misrepresent the advertiser’s identity or services. To characterize this as “secretly trading” on another’s goodwill ignores that transparency.

You can see how time has changed how these practices are viewed. There were so many freakouts about keyword advertising issues in the 2000-2010 range, but now the advertising genre seems so old-hat that the majority is baffled why anyone would question it. The blockbuster Lerner & Rowe opinion from the 9th Circuit exhibited the same attitude adjustment.

The majority also criticizes the dissent for calling competitive keyword advertising “leeching.” (On the plus side, at least the dissent didn’t call it “conquesting“). The majority says:

the dissent’s labeling of the practice as “leeching” is a rhetorical flourish unsupported by facts or precedent. No RPC prohibits competition, and the rules do not grant attorneys proprietary rights over their names in public search algorithms. In fact, prohibiting keyword advertising that that is not unfair competition would set a dangerous precedent, chilling permissible advertising and restricting consumer access to legal services based on vague allegations of reputation appropriation

For more on these arguments, see my 2016 article on competitive keyword ads by lawyers (cited only by the dissent, not the majority).

I think the “leeching” label is out-of-bounds and should be retired. It disrespects, and erases from the equation, the many consumers who benefit from lawyer advertising, especially when comparative advertising expands their options and spurs competition on price and quality. Instead, I think the true villians in this story are any attorneys who use bar regulations to restrict competition and reduce consumer choices.

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To this point, this opinion is pretty good overall. But then…

The opinion takes a bizarre and totally unexpected trip to Wackyland. After concluding that competitive keyword advertising doesn’t commit any RPC violations, the majority nevertheless makes a nonsequitur conclusion that advertisers must make a mandatory disclosure on landing pages. Here is the majority’s entire justification of this mandatory disclosure:

In light of those conclusions, however, the Court still faces the simultaneous challenge of enabling attorneys to advertise using the most state-of-the-art technology while protecting the interests of the public, the integrity of our profession, and the administration of justice. This has necessitated additional precautions as attorney advertising has evolved over the years. For example, attorneys are required to maintain “[a] copy or recording of an advertisement or written communication … for three years after its dissemination along with a record of when and where it was used.” R. 7.2(b). Unlike other jurisdictions, “New Jersey does not require lawyers to submit their advertisements for pre-publication review.” Advisory Comm. on Pro. Ethics & Comm. on Att’y Advert., Notice to the Bar: Proposed Amendments to Rules of Professional Conduct 7.2 and 1.6 (Apr. 24, 2018).

And so, given our ruling today, we add the below precautionary disclaimer to assure that New Jersey attorneys continue to advertise in a way that is transparent and ethical.

Any attorney who purchases the name of a competitor attorney or a law firm’s name as part of a keyword advertising campaign, must now include the following disclaimer on any landing page to which the paid ad directs a consumer:

You arrived at this page via a paid advertisement on [insert name of search engine provider] through paid keyword search results. This website and the legal business it describes are affiliated only with [insert name of purchasing attorney] and the other attorneys referenced within this website.

The above language will permit any consumer, as well as the competitor attorney and firm whose name is being used, to understand how this sponsored ad appeared in a search results page.

What??? No. Just no. This requirement is so gratuitous, so undertheorized, so poorly implemented. There is no proof that consumers will understand this language. There is no proof that consumers will care. There is no specification about where the disclosure has to appear on the page–if it’s at the bottom in grey-on-white font, is that OK? How much will it cost attorneys to implement this disclaimer, especially if they have to dynamically create the disclaimer to reflect which search engine referred the user? If the keyword ad is click-to-call, what is an advertiser supposed to do….make an oral disclosure when the phone picks up? If the attorney omits the disclaimer, what Rule of Professional Conduct did they violate? Remember, the court already said that competitive keyword advertising doesn’t violate the RPC, so I don’t see on what legal basis an advertiser could be punished for omitting the disclosure.

Given all of these problems, and surely many others I didn’t come up with in the first 5 minutes of thinking about it, I don’t see how this mandatory disclosure could survive a Constitutional challenge.

I don’t know what internal deliberations caused the majority to reach this bizarre outcome. It was not recommended by the special adjudicator. Who came up with this idea? Why did they think it solved any problem? The whole thing is WEIRD.

The worst thing is that this new formality gives the keyword competition-hating lawyers new and additional vectors to attack competitive keyword advertising. Unless the advertising lawyers implement this disclaimer to the haters’ satisfaction, I assume the haters will lob a steady stream of complaints to the bar regulators about missing or allegedly insufficiently prominent disclaimers in an effort to punish the advertising lawyers for daring to compete with them. This will lead to lots of vitriol, animosity, angst, posturing and threats, wasted energy, and unproductive investigatory time for a disclosure that benefits no one. SURELY the Supreme Court recognized the strategic gaming that this disclosure requirement will spur…right…?

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One justice dissented: “I would hold that this method of deceptive advertising — to secretly appropriate for oneself the earned good will and reputation of another lawyer or firm solely for personal financial gain — violates RPC 8.4(c)’s prohibition against engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”” Except…as the majority noted, there are no “secrets” when a lawyer buys a competitive keyword ad, so what is the dissent even talking about?

In a footnote, the dissent continues on the stealth theme: “Leeching is unlike an advertising attorney placing a billboard next to a competitor’s sign or office. Adjacent billboards are readily apparent to the prospective client, while leeching is discreetly done behind the backs of the prospective client and competitor attorney whose name the advertising attorney purchased as a keyword.” See my Brand Spillovers paper for more on the billboard analogy.

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The good news: competitive keyword advertising by lawyers is permitted by NJ bar rules. The bad news: that advertising also requires a thoughtless mandatory disclosure that the court created from thin air. The worst news: if you hope this decision resolves the battles over competitive keyword advertising by lawyers, you surely will be disappointed. This issue has already outlived its usefulness by a decade or more, and I estimate we have many more years of legal battles on this topic ahead of us…assuming our country doesn’t implode first. ¯\_(ツ)_/¯

Case Citation: In re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics, 2025 WL 1462185 (N.J. Supreme Ct. May 22, 2025)

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NJ Supreme Court Blesses Lawyers’ Competitive Keyword Ads (With a Baffling Caveat)

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