Permissible Use of Competitor Names in Attorney Keyword Advertising with Mandatory Disclaimer

Introduction

In In Re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics, 260 N.J. 331 (2025), the Supreme Court of New Jersey addressed a novel question in the digital age: may an attorney purchase the proper name of a competing attorney or law firm as a keyword in online search‐engine advertising? The underlying dispute arose when “Jane Smith, Esq.” learned that “John Doe, Esq.” had bought her name as a pay‐per‐click keyword so that every time a user Googled “Jane Smith,” a sponsored link to John Doe’s website appeared above organic results for Jane Smith. The Advisory Committee on Professional Ethics (“ACPE”) had answered “yes, it is permissible,” but limited its review to whether existing Rules of Professional Conduct (“RPCs”) already barred the practice. The New Jersey State Bar Association and the Bergen County Bar Association petitioned for review, this Court remanded for detailed factual findings, and today the Court affirms the ACPE’s holding—subject to one important modification: any attorney who purchases a competitor’s name in this way must include a clear and conspicuous disclaimer on the landing page of the resulting ad.

Summary of the Judgment

Justice Noriega, writing for a 4–1 majority, held that:

RPC 7.1/7.2 (Advertising Rules) – Purchasing a competitor’s name as a keyword is not, in itself, a “communication” under the rules governing the content of lawyer advertising. A keyword purchase merely affects placement; it does not misstate or omit facts in the ad copy itself.
RPC 8.4(c) (Dishonesty, Fraud, Deceit, Misrepresentation) – No showing of intent to deceive or misrepresent; the standard practice of pay‐per‐click advertising, even when competitive names are purchased, is widespread in all industries and does not, by itself, constitute professional misconduct.
RPC 8.4(d) (Prejudicial Conduct) – Because keyword purchases absent deceptive content or disclaimers do not rise to “particularly egregious” or “flagrant” violations, they do not prejudice the administration of justice.
Prospective Rule Amendment – To safeguard the public and maintain transparency, attorneys who buy a competitor’s name as a keyword must place the following disclaimer on the landing page that a user reaches after clicking the ad:
“You arrived at this page via a paid advertisement on [search engine name] through paid keyword search results. This website and the legal business it describes are affiliated only with [purchasing attorney’s name] and the other attorneys referenced within this website.”

Analysis

Precedents Cited

New Jersey Case Law on Advertising Misrepresentation – In In re Pajerowski, 156 N.J. 509 (1998), and In re Caola, 117 N.J. 108 (1989), this Court disciplined lawyers for materially misleading statements in their ads.
RPC 8.4(c) Jurisprudence – Cases such as In re Morell, 184 N.J. 299 (2005), and In re Stahl, 198 N.J. 507 (2009), emphasize that intentional false statements or deceptive conduct in any professional context violate the misconduct rule.
U.S. Supreme Court on Attorney Advertising – Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and In re R.M.J., 455 U.S. 191 (1982), held that truthful lawyer advertising is protected speech, but the States may prohibit inherently misleading ads or those proven deceptive by record.
Other Jurisdictions on Competitive Keyword Advertising – Texas and South Carolina ethics opinions (e.g. Tex. Op. 661 (2016), S.C. Ethics Adv. 20-01 (2020)) have largely embraced permissibility, whereas North Carolina and Maryland have condemned the practice as deceptive (N.C. Op. 4 (2023); Md. Ethics Docket 2022-02).

Legal Reasoning

1. Not a “Communication” Under RPC 7.1/7.2
RPC 7.2(a) authorizes lawyer advertising “subject to the requirements of RPC 7.1,” which bans false or misleading communications. The Court reasoned that buying a keyword is akin to a billboard placed next to a competitor: it influences visibility but does not itself make any affirmations about affiliation or credentials. Thus the purchase does not inject new content or misstatements into the ad; it merely affects where the ad appears.

2. No Intent to Mislead Under RPC 8.4(c)
Professional misconduct under RPC 8.4(c) requires deliberate dishonesty, fraud or deceit. The Court found no record evidence of intent to mislead in the expert testimony, bar‐member surveys, or anecdotal affidavits. Modern search‐engine results pages routinely blend paid and organic listings—clearly labeled “Ad,” “Sponsored,” or “Promoted”—and savvy users understand that sponsored results can appear alongside but are not affiliated with their searched term.

3. Not Prejudicial Conduct Under RPC 8.4(d)
Conduct is “prejudicial to the administration of justice” only if it is particularly egregious or flouts accepted professional norms. The Court declined to brand routine keyword bidding—common in countless industries—an unacceptable innovation in legal marketing.

4. Balancing Innovation and Public Protection
Recognizing the benefits of up‐to‐date digital marketing, the Court nonetheless imposed a protective measure: a mandatory disclaimer on the ad’s landing page. This prospective modification preserves the profession’s integrity while accommodating technological progress.

Potential Impact

Advisory Committees and Bar Counsel will now investigate keyword‐purchase complaints under the modified standard, focusing on whether the required disclaimer appears and whether the ad’s content suggests affiliation.
Practicing Attorneys can continue competitive keyword campaigns—using names, specialties, or geographic terms—so long as they (a) do not misstate credentials, (b) avoid misleading landing pages, and (c) include the Court’s disclaimer when purchasing proper names.
Consumers and Clients gain transparency: when they click an ad prompted by a searched name, they will see at once that it is a paid placement for the advertising attorney’s own business.
Future Precedents will likely interpret this ruling as an invitation to permit new advertising forms, balanced by clear disclosure requirements whenever consumer confusion may arise.

Complex Concepts Simplified

Keyword Advertising: An online marketing method where advertisers bid on search terms so that paid links appear when users type those words into search engines.
Proximity Marketing: Positioning ads alongside or near a competitor’s results to attract some of their audience—similar to opening a coffee shop next door to a well‐known café.
RPC 7.1 and 7.2: Rules limiting false or misleading lawyer ads, and authorizing lawyer advertising “through public media” so long as it remains truthful.
RPC 8.4(c) and (d): Broad prohibitions on dishonesty, fraud, deceit, misrepresentation, or conduct prejudicial to justice.
Sponsored vs. Organic Listings: Search‐engine results are generated by either an algorithm (“organic”) or by payment for placement (“sponsored” or “ad” links).

Conclusion

In Re Opinion No. 735 establishes the first New Jersey precedent on competitive keyword advertising by lawyers. It underscores two guiding principles: innovation in lawyer marketing is not per se unethical, but transparency is nonnegotiable. By affirming that purchasing a competitor’s name as a keyword does not violate RPCs so long as no misrepresentations occur—and by imposing a clear, conspicuous landing‐page disclaimer—the Court protects both the public’s right to clear information and the profession’s commitment to honesty and integrity. Future ethics inquiries will turn on the presence or absence of that disclaimer and any actual misstatements in ad content, rather than on the mere fact of competitive keyword purchases.