TRENTON, N.J. (CN) — The New Jersey State Bar Association pushed the state Supreme Court on Tuesday to hold that attorney advertising rules forbid lawyers from purchasing the names of competing counsel as keywords on search engines.
The Advisory Committee of Professional Ethics took up the inquiry last year to determine if such advertising practices violate the Rules of Professional Conduct by potentially misleading or deceiving consumers looking for an attorney.
For example, an advertiser could purchase the name of any lawyer as a keyword so that whenever that word is searched on a site such as Google, the ad buyer’s site appears at the top of the page as an advertisement, pushing the site of the named attorney further down the page.
The committee, appointed by the state Supreme Court, issued an opinion last June stating that this practice does not violate the advertising rules because consumers are not forced onto a certain attorney’s page.
“The user can choose which website to select and the search engine ordinarily will mark the keyword purchased website as paid or ‘sponsored’,” the opinion said. “This is not deceptive, fraudulent, or dishonest conduct within the meaning of the Rule of Professional Conduct.”
Argued this afternoon, however, before the seven-judge panel, the Bar Association’s attorney Bonnie Frost said this type of advertising practice preys on those who may be less tech-savvy.
“A lawyer who has purchased another lawyer’s name is deliberately targeting the unsophisticated in hopes that once they click on, they will stay on the site and engage,” said Frost, with the firm Einhorn Barbarito.
Andrew Cevasco, representing the Bergen County Bar Association, backed up Frost’s point, adding that search engine advertising hinders consumers’ searches for attorneys they want.
Chief Justice Stuart Rabner questioned Cevasco, wondering what was misleading about something labeled as an advertisement.
Cevasco, who is with the Archer law firm, stressed that the issue comes from consumers not being able to find what they searched for right away.
“When looking for an attorney, they have to scroll through dozens of advertisements to find the website of that attorney,” Cevasco said. “That’s impeding their searches, that’s misdirecting them, that’s misleading them. It’s dishonest, it’s deceitful.”
Cevasco further added that the only reason a person would purchase the name of a third-party lawyer as a keyword would be to deceive the public.
Assistant state Attorney General Donna Arons, representing the committee, defended the decision saying that they found nothing to prove that the displaying of these ads would deceive anyone.
“The committee felt that having an ad appear and perhaps diverting a consumer to a different law firm than the one they originally searched for was not an unfair, deceptive or misleading practice and didn’t go on to attorney misconduct,” said Arons.
Going further, Arons argued that attorneys are not responsible for how search engines display ads, therefore it makes it hard to say that the attorneys are intentionally being deceitful.
Justice Barry Albin pushed back, noting that this has nothing to do with the search engines.
“But this is not a question of what Google does, this is a question of the Supreme Court’s responsibility to superintend the practice of law,” said Albin. “And the question is if purchasing another attorney’s name will disadvantage the attorney’s name who’s been used on Google of some other site that person’s name is getting further down a list, would that not be of concern to us?”
Arons agreed, but noted that no lawyer has a right to a particular search on any search engine.
After arguments, Frost expressed gratitude that the state’s high court took time to listen to Tuesday’s arguments.
“I was pleased that the Supreme Court was interested and concerned about the issues raised by the New Jersey State Bar Association as to whether it is ethical for an attorney to buy another attorney’s name as an advertising keyword for an internet search,” Frost said in an email.
Arons and Cevasco did not immediately respond to emails seeking comment.
The panel was rounded out by Justices Anne Patterson, Jaynee LaVecchia, Lee Solomon, Faustino Fernandez-Vina and Fabiana Pierre-Louis.