New Jersey Supreme Court Rules Competitive Keyword Advertising by Attorneys Does Not Violate RPC

In a decision tackling competitive keyword advertising among attorneys, the Supreme Court of New Jersey sought to determine if this class of advertising was a violation of Rules of Professional Conduct (RPC).

State and county bar associations filed several petitions asking the Supreme Court to review a decision of the Supreme Court Advisory Committee on Professional Ethics on keyword advertising. That decision had determined it was permissible for an attorney or law firm to purchase a competitor’s name from an internet search engine as a keyword advertisement search term.

The court found that this type of advertising is proximity marketing, in which one attorney positions themselves next to a more successful competitor. This competitive advertisement is permissible and allows attorneys to ascertain the clients that the more successful attorney turned away. Moreover, the court found that, without any intention to mislead or deceive clients, the mere purchase and use of a competitor’s name is not a violation of RPC.

According to the court, when an attorney purchases the name of a competitor attorney or law firm, it is not classified as a communication nor is it subject to the RPC. Subsequently, the court found that purchasing a competitor’s name does not violate any RPC establishing that it is professional conduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Lastly, the court held that this practice, on its own, does not violate any RPC prohibiting attorneys from engaging in conduct “prejudicial to the administration of justice.”

This finding is not without dissent, Justice Fasciale believes this practice to be leeching and involving intentional misconduct.