New Jersey Opines On Keyword Purchase Of Competitor Name

The New Jersey Supreme Court opines on the ethics of “competitive keyword advertising” by blessing the practice with appropriate disclaimers

This case presents the narrow question of whether it is permissible under the Rules of Professional Conduct (RPC) for an attorney or law firm to purchase a competing attorney’s or law firm’s name as a keyword from internet search engine providers, such as Google, Yahoo, or Bing. Specifically, whether John Doe, Esq., may purchase the name of Jane Smith, Esq., as a keyword such that when a user searches for “Jane Smith,” a sponsored link to John Doe’s website appears prominently above organic search results for “Jane Smith.” This practice is known as “competitive keyword advertising.”

The Advisory Committee on Professional Ethics (ACPE) received two related inquiries pertaining to attorney online advertising. The first inquiry — the subject of this appeal — asked whether competitive keyword advertising that uses a competing attorney’s or law firm’s name violates the RPCs. The second — not on appeal — concerned the propriety of embedding a hyperlink in a competitor attorney’s name such that a click on the competitor’s name redirects the user to the purchasing attorney’s website. In its June 25, 2019 opinion, the ACPE concluded that the purchase of another lawyer’s or law firm’s name in competitive keyword advertising does not violate the RPCs, while hyperlinking a competitor’s name does violate 8.4(c). No party has challenged the ACPE’s determination of the second question.

The Court granted petitions from the New Jersey State Bar Association, 241 N.J. 391 (2020), and the Bergen County Bar Association, 241 N.J. 392 (2020), for review of Opinion 735 pursuant to Rule 1:19-8. After oral argument in November 2020, the Court remanded the matter and appointed a Special Adjudicator to make specific factual findings about the mechanics of keyword searches and their capacity to mislead. 260 N.J. 331 (2021). The Bar Associations participated in the remand proceedings, which included testimony by three experts and feedback from members of the bar whose names or firm names had been purchased as keywords by competitors. The Court reviews the record in detail.

The Special Adjudicator submitted his report in June 2024. He described how search engine algorithms determine ad placement based on various factors, including bid amounts, keyword relevance, and ad quality scores. He noted that ads typically appear above organic results, and while marked with identifiers like “Ad,” “Sponsored,” or “Promoted,” their visibility and user recognition vary. Ultimately, the Special Adjudicator found that the current RPCs were sufficient to contend with any allegations of deception, dishonesty, fraud, or misrepresentation alleged via competitive keyword purchase of attorneys’ or law firms’ names and therefore recommended no changes to the RPCs.

HELD: The practice of purchasing a competitor’s name as a keyword does not, in itself, constitute a violation of the RPCs. However, the Court requires 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.

1. The Court first considers whether purchasing the proper name or law firm name in competitive keyword advertising is a “communication” within the meaning of RPCs 7.1 and 7.2. RPC 7.2 permits lawyers to advertise “[s]ubject to the requirements of RPC 7.1.” RPC 7.1(a), in turn, provides that “[a] lawyer shall not make false or misleading communications about the lawyer, the lawyer’s services, or any matter in which the lawyer has or seeks a professional involvement,” and explains what renders a communication false or misleading. The Court has found violations of RPC 7.1 when attorneys or their representatives make misrepresentations in the content of their advertising. The dispute in this case, however, is not over the content of an advertisement, but rather the placement of it. 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. So long as the purchasing of the keywords does not create a false or misleading suggestion that the advertiser is affiliated with the object of the search, efforts made to enhance visibility do not amount to communication under RPC 7.1 and 7.2. (pp. 19-22)
2. The Court also holds that purchasing the proper name of an attorney or a law firm as competitive keywords does not violate RPC 8.4(c), which establishes that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In New Jersey, violations of RPC 8.4(c) require a showing of deliberate and intentional conduct designed to mislead. The current record, however, contains no evidence of such intent. 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 Court does not hold that competitive keyword advertising can never be misleading or deceitful under RPC 8.4(c). However, given the absence of evidence showing any intent to mislead, the widespread and accepted nature of keyword advertising, and the functioning of modern search engines, the Court concludes that the practice of purchasing a competitor’s name as a keyword — without more — does not constitute a violation of RPC 8.4(c). The Court also finds that the alleged conduct does not violate RPC 8.4(d), which makes it professional misconduct for lawyers to engage in conduct that is “prejudicial to the administration of justice.” (pp. 22-32)

3. To enable attorneys to advertise using the most state-of-the-art technology while protecting the interests of the public, the integrity of the legal profession, and the administration of justice, the Court now requires a 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. (pp. 33-34)

AFFIRMED AS MODIFIED.

JUSTICE FASCIALE, dissenting, stresses that attorneys spend their entire careers building a reputation and would hold that the method of advertising at issue in this appeal — to secretly and without consent appropriate for oneself the earned good will and reputation of another lawyer or firm solely for personal financial gain — violates RPC 8.4(c). Justice Fasciale expresses the view that competitive keyword advertising involves intentional conduct because it requires several deliberate steps. Justice Fasciale notes that most jurisdictions to consider the question have held that competitive keyword advertising violates their respective versions of RPC 8.4(c) and explains that holding otherwise is a departure from the tradition of holding attorneys to the highest ethical standards. Justice Fasciale would adopt the State Bar Association’s proposed comment to RPC 8.4(c), which would make clear that the practice at issue here would be an ethical violation.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON and WAINER APTER join in JUSTICE NORIEGA’s opinion. JUSTICE FASCIALE filed a dissent. JUSTICE PIERRE-LOUIS did not participate.