Association urges a reconsideration of professional ethics opinion on attorney advertising about online ad buys

A supplemental briefing submitted by the New Jersey State Bar Association (NJSBA) following the Supreme Court's grant of the organization's petition for review, urges the Court to reconsider findings in the opinion rendered by the Advisory Committee on Professional Ethics 735 (ACPE 735), finding that an attorney can purchase a hyperlink in the name of a competitor lawyer to divert the user directly to the purchasing lawyer's website. An inquiry was made to the committee last year as to whether this practice violated the Rules of Professional Conduct. The committee found there was no violation. The Bergen County Bar Association filed a challenge to this finding last year as well, and both petitions for review were granted, permitting additional briefs to be submitted.

The NJSBA argued that the opinion focused on the practice permitting an attorney to pay for an indirect communication that misleads a consumer, rather than the actual website containing the searched name. In finding that this was not a violation, the committee found that this act was not a "communication" and therefore fell outside the scope of RPC 8.4, addressing misconduct and prohibiting an attorney from engaging in conduct that involves dishonesty, fraud, misrepresentation, or conduct that is prejudicial to the administration of justice.

Relying on RPC 7.1, the NJSBA said that "[w]hile a purchasing attorney is not directly communicating misleading information to a consumer, they are indirectly doing so by using their purchasing power to engage the internet browser to lead the consumer to their own website over the website of the actual attorney being searched."

The NJSBA urged the Supreme Court to consider the higher ethical standards to which attorneys are held and the unfair advantage a purchasing attorney obtains in being permitted to capitalize on the good name of another attorney's good reputation. "An attorney's good name and reputation are their lifeblood," the NJSBA wrote in its brief. "Many attorneys spend their entire career building a reputation for outstanding counsel and advocacy on behalf of their clients, and they rely on repeat business based on the value of their good name and reputation."

The NJSBA urged the Supreme Court to decline to adopt the conclusions within ACPE 735 and instead to engage in a wide-ranging review of the advertising possibilities now available as a result of evolving technology.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.