A New Jersey ethics authority has provided guidance on what’s fair game and what’s off-limits for lawyers who use search engines to attract new clients.

The Supreme Court’s Advisory Committee on Professional Ethics said in an opinion made public Tuesday that a lawyer may purchase a sponsored search keyword on a competing lawyer’s name. That would show the purchaser’s own law firm website in the results when a person types the competitor’s name in a search engine.

However, the committee drew the line at another form of sponsored search marketing in which the lawyer pays to insert a hyperlink to his own website on the name of a competing lawyer. That would mean someone who clicked on the competitor’s name in a search result would be diverted to the purchaser’s website instead.

The first practice is not fraudulent, deceptive or dishonest and is not prejudicial to the administration of justice, the committee said. But the second practice is “purposeful conduct intended to deceive the searcher for the other lawyer’s website,” the committee said.

The committee examined whether the first practice violated RPC 1.4 and 7.1, which pertain to communication, and RPC 8.4, which pertains to misconduct, but found that none of those rules was violated. The committee found that the Texas State Bar Professional Ethics Committee and a court in Wisconsin have deemed the first practice OK, but a 2010 ethics opinion from the North Carolina State Bar concluded that purchasing another lawyer’s name as a keyword for an internet search is dishonest and a violation of RPC 8.4(c).

The websites of the keyword purchaser’s law firm and the competitor’s law firm would presumably both appear in the resulting search, the former as a paid website and the latter in the organic results, permitting the user to choose which to select, the committee said.

But as for the second practice, the committee said that surreptitiously redirecting a user from the competitor’s website is “purposeful conduct intended to deceive the searcher.”

The issues examined in the ethics opinion are reminiscent of a recent lawsuit between two law firms over search engine marketing tactics.

In June 2018, Helmer, Conley & Kasselman of Haddon Heights brought a trademark infringement suit against Hark & Hark of Cherry Hill in the U.S. District Court. The lawsuit said Hark & Hark used Google’s sponsored search advertising to lure prospective clients who had searched for Helmer Conley.

The suit claimed people conducting Google searches on terms such as “Helmer law office” or “Helmer lawyer” brought up search results with the heading “Helmer Conley Kasselman, Aggressive Criminal Defense.” But the search results themselves listed the New Jersey street address and telephone number of Hark & Hark. Clicking on such a result brought up the Hark & Hark website, Helmer Conley alleged.

Helmer Conley voluntarily dismissed the suit in August 2018, after U.S. District Judge Noel Hillman of the District of New Jersey permanently enjoined Hark & Hark from engaging in the online activities that prompted the litigation.

Marc Garfinkel, a Morristown lawyer who represents other lawyers in ethics and disciplinary cases, agrees with the committee’s handling of the issue, but is nonetheless uneasy about the practice of intercepting prospective clients who were conducting a web search for a competing law firm.

“I think this is well-grounded in the law, as I understand the law. But there is a fundamental sense of something wrong here, an unfairness that’s being perpetrated,” Garfinkel said.

“The acts are not illegal or fraudulent. But they’re siphoning off business generated by somebody else’s effort. It seems to be a little unfair. Maybe they owe a commission [to the other law firm] because they’re capitalizing on that other lawyer’s goodwill. Maybe that’s why it seems unfair to me,” Garfinkel said.