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PaperclipPerfector  1d ago (text post)   748 thread views

Friday Fun Thread for May 23, 2025

Be advised: this thread is not for serious in-depth discussion of weighty topics (we have a link for that), this thread is not for anything Culture War related. This thread is for Fun. You got jokes? Share 'em. You got silly questions? Ask 'em.

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Somewhat esoteric court opinion:

  • In conducting Internet searches, you probably have encountered a situation where (for example) you search for "Amazon", but Ebay appears at the top of the results page (prominently marked as "sponsored"), above Amazon itself. This technique is known as "competitive keyword advertising".

  • If lawyer John Doe sets up competitive keyword advertising against fellow lawyer Jane Smith—so that, when someone searches for "jane smith lawyer", John Doe's website appears at the top of the results page (prominently marked as "sponsored"), above the website of Jane Smith herself—has John Doe violated the lawyers' code of ethics by "making false or misleading communications" or "engaging in dishonesty, fraud, deceit, or misrepresentation"? In June 2019, the state ethics committee (not the state disciplinary board, but a committee set up by the state supreme court) says the answer is "no".

  • In May 2020, the state supreme court agrees to consider the state bar association's appeal of the ethics committee's determination. In November 2020, the state supreme court remands the matter for thorough investigation under a special <del>master</del><ins>adjudicator</ins>. In June 2024, the special master finally submits a report agreeing with the ethics board that competitive keyword advertising is not a violation of the lawyers' code of ethics.

  • In May 2025, the state supreme court issues an opinion mostly agreeing with the special master's conclusion (by a vote of four to one), but adding one extra requirement: in order to prevent confusion, whenever a user clicks on an ad that uses competitive keyword advertising, the ad's landing page must explicitly state that the user has entered the website of John Doe.

Taken to its logical conclusion, the dissent's reasoning would bar commonplace advertising practices. For example, under its view, an attorney who purchases a keyword like "Newark divorce lawyer" despite maintaining an office in a nearby suburb would be engaging in deception simply because the ad appears in response to a search regarding Newark. That approach would improperly conflate strategic visibility with dishonesty, effectively discouraging attorneys from using lawful digital tools to expand access to their consumers. This form of advertising is not misleading. It is standard competitive marketing aimed at reaching a broader audience. We therefore do not reach the dissent's First Amendment analysis.

(Bonus: Using marijuana is legal under state law but illegal under federal law. The lawyers' code of ethics forbids lawyers from "criminal acts that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects". Is using marijuana a violation of the code of ethics? The state ethics committee's answer is "no".)

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