Appellate Practice Group Co-Chair and Partner Bonnie C. Frost Presenting Oral Argument Before the Supreme Court on Behalf of the New Jersey State Bar Association on September 24

On September 24, Einhorn, Barbarito, Frost & Botwinick, PC Partner Bonnie C. Frost will present an oral argument before the Supreme Court in the matter In Re Supreme Court Advisory Committee on Professional Ethics Opinion No. 735. Frost co-chairs the Firm’s Appellate Practice Group with partner Matheu D. Nunn.

Frost will argue on behalf of the New Jersey State Bar Association to urge reconsideration of Advisory Committee on Professional Ethics (ACPE) Opinion 735, which allows attorneys to use another attorney’s name or law firm name as a keyword search to redirect searches to the competing attorney’s website. Frost and NJSBA Assistant Executive Director/General Counsel Sharon A. Balsamo wrote the briefs. The oral argument will be held on Sept. 24; the webcast will be available at this link.

The ACPE issued a finding in 2019 that the practice of purchasing competitor’s names as keywords “is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c)” because ACPE believes these keyword-purchase websites are marked as paid or “sponsored.”

This round of briefing and oral argument follows the report of Assignment Judge Jeffrey R. Jablonski, who served as special adjudicator in the case. In a report issued in June, Assignment Judge Jablonski took limited discovery by consent of the parties “to provide any attorneys who either engaged in this advertising practice or those who might have been negatively impacted by it to answer standard form interrogatories.” Following a hearing, Assignment Judge Jablonski issued a report containing a detailed analysis and findings of fact in connection with purchasing keyword search terms from the top three internet search engines. Assignment Judge Jablonski did not opine on whether the practice complained of is ethical, but concluded that the issue could be addressed using the current RPC provisions, and that no rule modifications were necessary.

In its latest round of briefing, the NJSBA noted the report supports its assertions that this practice is misleading, dishonest and prohibited and therefore unethical. The NJSBA agreed the RPCs were sufficient; however, it recommended a comment to the rules to provide additional clarity to specifically state that it is a violation “to purchase another lawyer’s or law firm’s name as a keyword search term from internet search engines to use in the lawyer’s own keyword advertising.”

Frost and Nunn regularly handle emergent and non-emergent matters before the Appellate Division and Supreme Court. Their efforts across a wide-range of subject matters have resulted in a number of precedent-setting decisions, including the landmark child relocation case of Bisbing v. Bisbing; cases of first-impression regarding cohabitation and termination of alimony in Cardali v. Cardali and Quinn v. Quinn; a case of first-impression regarding life insurance proceeds in Woytas v. Greenwood Tree; a contested adoption case of first impression in In re Adoption of a Child by J.E.V.; and a case of first-impression involving a special needs person in J.B. v. W.B.

Overall, the Firm’s Appellate Practice Group has prevailed in 19 cases that its attorneys initiated or handled before the New Jersey Supreme Court, including the noteworthy “firefighters’ rule” decision of Ruiz v. Mero and the Supreme Court’s decision in State v. Dispoto.