WEBVTT 2 00:00:05.494 --> 00:00:11.797 ETHICS MAY WE PLEASE HAVE APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.) 3 00:00:11.797 --> 00:00:59.267 CHIEF JUSTICE RABNER: THANK YOU. WELCOME, COUNSEL, MS. FROT, 4 00:00:59.267 --> 00:01:05.279 FROS PLEASE GO AHEAD. BONNIE C. FROST: MAY IT PLEASE THE COURT, I AM ASKING 5 00:01:05.279 --> 00:01:10.680 THE COURT TO STAY THE HOLDING OF THE ADVISORY COMMITTEE OF OPINION 735 AND WE'RE ASKING 6 00:01:10.680 --> 00:01:16.692 THAT YOUR HONORS ENGAGE IN A BROAD INVESTIGATION, DISCUSSION, DEBATE ABOUT THE CONCLUSIONS 7 00:01:16.692 --> 00:01:21.370 DRAWN BY THE COMMITTEE. THE ADVERTISING PRACTICE IN QUESTION IS DIFFERENT 8 00:01:21.370 --> 00:01:26.998 THAN ANY THIS COURT HAS EVER CONSIDERED BECAUSE OF THE RAPID CHANGES IN TECHNOLOGY. AND 9 00:01:26.998 --> 00:01:31.484 THEREFORE, WE BELIEVE THAT THE DISCUSSION, DEBATE ON VARIOUS ADVERTISING POSSIBILITIES 10 00:01:31.484 --> 00:01:38.288 WOULD ASSURE THE PUBLIC THAT THIS COURT HOLDS LAWYERS TO A HIGH STANDARD AND PROJECTS 11 00:01:38.288 --> 00:01:44.606 CONSUMERS. BUYING AND USING ANOTHER LAWYER'S NAME AND REPLICATION IN A SEARCH 12 00:01:44.606 --> 00:01:52.774 QUALIFIES AS MISLEADING UNDERSTAND LOOP 7.1, BUYING AND USING ANOTHER LAWYER'S NAME, NOT 13 00:01:52.774 --> 00:02:00.372 YOUR OWN CAN DELIVER AN ENTICE SOMEONE TO ONE'S OWN WEBSITE IS DECEITFUL AND IS SURELY 14 00:02:00.372 --> 00:02:09.607 A MISREPRESENTATION UNDERSTAND R PC. IS THE EPITOME OF FLEG GRANT DISHONESTY 15 00:02:09.607 --> 00:02:18.870 WHICH IS NECESSARY FOR THE COURT TO FIND A VIOLATION OF L PC 8.4 C. IN A LAWYER'S 16 00:02:18.870 --> 00:02:23.283 REPRESENTATION IS THEIR STOCK AND TRADE WHICH HAS BEEN BUILT ON OVER YEARS OF HARD WORK. 17 00:02:23.283 --> 00:02:29.845 THIS REPUTATION IS EMBODIED IN THE LAWYER'S NAME AND A LAWYER'S NAME HAS VALUE AND THEN 18 00:02:29.845 --> 00:02:35.494 TO HAVE SOMEONE COME ALONG BUY AND USE THAT NAME AN REPUTATION FOR THEIR OWN PROPHET, 19 00:02:35.494 --> 00:02:44.071 PROFIT IS DISHONEST AN THE PRACTICE IS DECEITFUL. THE STATE BAR BELIEVES THAT 20 00:02:44.071 --> 00:02:49.408 THE ASSUMPTION WHICH LED TO THE COMMITTEES CONCLUSIONS ARE FLAWED. FIRST THE 21 00:02:49.408 --> 00:02:55.755 COMMITTEE SAYS BECAUSE THERE IS GROWING SOPHISTICATION OF THE CHARGE OF AUDITING 22 00:02:55.755 --> 00:03:01.610 BUYING AND USING A COMPETITOR'S NAME AS A KEYWORD IS NOT DISHONEST AN THEREFORE DOES NOT 23 00:03:01.610 --> 00:03:10.791 VIOLATE R PC 8.4 C, CONSUMERS OF LEGAL SERVICES ARE EVERYONE NOT JUST A GROWING NUMBER 24 00:03:10.791 --> 00:03:17.468 OF SOPHISTICATED SEARCH ERS. THE, IT IS DESIGNED TO PROTECT THE PUBLIC AS YOUR HONORS 25 00:03:17.468 --> 00:03:26.119 HAVE SAID IN IN RAY, WILL SON, THUS THE BAR BELIEVES THIS IS INCORRECT AND DOES NOT 26 00:03:26.119 --> 00:03:32.373 PROTECT THE LESS SOPHISTICATED CONSUMER WHO HAS BEEN SURREPTITIOUSLY TARGETED AND REDIRECTED 27 00:03:32.373 --> 00:03:37.972 TO A SITE THAT THEY DID NOT WANT. IN FACT THE OPPOSITE, A LAWYER WHO HAS 28 00:03:37.972 --> 00:03:44.997 PURCHASED ANOTHER LAWYER'S NAME IS DELIBERATING TARGETING THE UNSOL FIST INDICATED IN HOPES 29 00:03:44.997 --> 00:03:52.599 THAT ONCE THEY CLICK ON THE USER THEY WILL STAY ON THE CITE AN ENGAGE IN THEM. 30 00:03:52.599 --> 00:03:59.643 THE LAWYER IS INTENTIONALLY PREYING ON THE LESS SOPHISTICATED USERS AN THOSE ARE THE ONES 31 00:03:59.643 --> 00:04:08.350 WE SHOULD STRIVE TO PROTECT. NEXT THE ATTORNEY KEYWORD, IN ANY RESULTING 32 00:04:08.350 --> 00:04:18.672 SEARCH. THE STATE BOARD DISAGREES. ADS ARE PLACED BEFORE ORGANIC SITES OCCUR IN THE 33 00:04:18.672 --> 00:04:25.045 SEARCH AND THEREFORE ADS CREATE A BARRIER TO THE ACCESS OF THE CONSUMER IT CANNOT BE ASSUMED 34 00:04:25.045 --> 00:04:30.963 THAT BOTH THE ORGANIC SEARCH AND THE SPONSZ SORED SITE WILL APPEAR, THE COMMITTEE ALSO 35 00:04:30.963 --> 00:04:36.814 ASSUMES THAT BECAUSE A CAN KEYWORD WILL HAVE THE WORD AD NEAR IT USERS WILL BE ABLE TO 36 00:04:36.814 --> 00:04:42.712 IGNORE THE DECEPTIVE AND CONTINUE ON FURTHER FOR THE ORGANIC SEARCH OF THE LAWYER THEY 37 00:04:42.712 --> 00:04:47.691 WISH TO FIND. THE STATE BOARD DISAGREES. THE COMMITTEE ADOPTED 38 00:04:47.691 --> 00:04:54.501 THE REASON OF THE TEXAS PROFESSIONAL ETHICS COMMITTEE AND WHERE THAT COMMITTEE SAID IT 39 00:04:54.501 --> 00:05:00.580 WAS HIGHLY UNLIKELY THAT A REASONABLE PERSON DOING INTERNET SEARCHES WOULD BE MISLED INTO 40 00:05:00.580 --> 00:05:05.522 THINKING EVERY SEARCH RESULT INDICATES THAT A LAWYER SHOWN IN A LIST OF SEARCH RESULTS 41 00:05:05.522 --> 00:05:12.067 HAS A RELATIONSHIP WITH THE LAWYER WHOSE NAME IS IN THE SEARCH. THE STATE 42 00:05:12.067 --> 00:05:19.067 BOARD DIRECTED THAT THE OPPOSITE SHOULD BE DRAWN, A REASONABLE PRN EXPECTS TO GET TO THE 43 00:05:19.067 --> 00:05:25.587 LAWYER'S SITE WHO IS MAINLY WANTED AND CLICKED ON NOT SOMEONE ELSE'S, AND FRANKLY WHY IS 44 00:05:25.587 --> 00:05:31.143 IT NECESSARY TO EVEN DISCUSS THIS PRACTICE, UNFORTUNATELY BECAUSE THIS DECEPTIVE PRACTICE 45 00:05:31.143 --> 00:05:38.016 WORKSES. A KEYWORD IN AN OF ITSELF CONSTITUTES FALSE ADVERTISING AND IS MISLEADING BECAUSE 46 00:05:38.016 --> 00:05:43.223 IT'S NOT THE LAWYER'S NAME OF THE SITE WHERE THE UNSUSPECTING CLIENT IS BEING DIVERTED, 47 00:05:43.223 --> 00:05:50.345 THE PURCHASING ATTORNEY IS CONSTANTLY MANIPULATING AND INTERFERING WITH A 48 00:05:50.345 --> 00:05:55.745 CONSUMER'S CHOICE AND HE IS CONSTANTLY USING SOMEONE ELSE'S NAME FOR HIS OWN FINANCIAL 49 00:05:55.745 --> 00:06:06.991 BENEFIT. IT IS THIS BEHAVIOR VIOLATES R PC 7.1 AS WELL AS R PC 8.4 C, COMMITTEE 50 00:06:06.991 --> 00:06:11.973 OR REMAND FOR FURTHER CONSIDERATION OF THE POINTS RAISED BY NOT ONLY THE STATE BAR BUT 51 00:06:11.973 --> 00:06:16.203 AMICI. CHIEF JUSTICE RABNER: DOES THAT COMPLETE YOUR OPENING STATEMENT, 52 00:06:16.203 --> 00:06:20.038 MS. FROST? BONNIE C. FROST: YES, IT DOES. THANK YOU YOU, YOUR 53 00:06:20.038 --> 00:06:23.838 HONOR. THE COURT: HELP US ON THE QUESTION OF WHAT IS MISLEADING ON SOMETHING 54 00:06:23.838 --> 00:06:29.536 THAT IS LABELED AN ADVERTISEMENT. BONNIE C. FROST: WHAT I THINK IS MISLEADING 55 00:06:29.536 --> 00:06:37.549 IS THE FACT THAT NOT EVERYONE AND I AM ONE OF THEM, ALWAYS READS OVER -- ALWAYS DISCERNS 56 00:06:37.549 --> 00:06:44.875 WHAT THE WORD AD -- THAT AN AD IS THERE. WE HAVE PROVIDED IN OUR BRIEF A STUDY THAT SHOWS 57 00:06:44.875 --> 00:06:51.923 THAT PEOPLE WHO ARE OLDER, OVER 60 WITH THE STUDY THAT THOSE PEOPLE ARE HAVING DIFFICULTY 58 00:06:51.923 --> 00:07:00.546 AND ARE CONFUSED WITH ADVERTISING AND JUST THE WORD AD. IF YOU LOOK AT THE 59 00:07:00.546 --> 00:07:06.824 AD WHICH IS ONE OF THE EXHIBITS TO OUR BRIEF, YOU WILL SEE THAT THE WORD AD IS SMALL, 60 00:07:06.824 --> 00:07:14.745 A SMALL FONT AND IT'S NOT REALLY DISTINGUISHABLE IN THE SEARCH, DEPENDING ON WHAT THE 61 00:07:14.745 --> 00:07:22.528 SEARCH EDGE GIN IS, IT'S NOT READILY SEEN THAT IT IS IN FACT AN AD. CHIEF JUSTICE 62 00:07:22.528 --> 00:07:26.587 RABNER: CAN I FOLLOW UP? BONNIE C. FROST: SURE, YOUR HONOR. CHIEF 63 00:07:26.587 --> 00:07:30.624 JUSTICE RABNER: I UNDERSTAND YOUR POINT ABOUT THE SMALL CIRCLE THAT SAYS AD THAT COULD 64 00:07:30.624 --> 00:07:36.325 POTENTIALLY LEAD TO CONFUSION. IS PERHAPS PART OF THE SOLUTION THAT THE TEXT 65 00:07:36.325 --> 00:07:43.532 OR SOMEPLACE STATE IN CLEAR BIG LETTERS, THIS IS AN ADVERTISEMENT, WOULDN'T THAT ADDRESS 66 00:07:43.532 --> 00:07:49.888 THE CONCERN THAT THIS IS MISLEADING? BONNIE C. FROST: IT MAY. 67 00:07:49.888 --> 00:07:55.190 HOWEVER, I WOULD GO BACK TO MY POINT, YOUR HONOR, ABOUT THE FACT THAT SOMEONE ELSE AND 68 00:07:55.190 --> 00:08:02.104 I THINK THIS IS REALLY AN IMPORTANT POINT OF THE ARGUMENT THAT WE'RE DEALING WITH TODAY, 69 00:08:02.104 --> 00:08:10.714 IT IS USING SOMEONE ELSE'S NAME TO GAIN AN ECONOMIC ADVANTAGE. MOST OF US EXPECT THAT 70 00:08:10.714 --> 00:08:16.700 WHEN THEY GO TO A WEBSITE AND THEY CLICK ON SOMEBODY'S NAME THAT'S WHERE THEY ARE GOING 71 00:08:16.700 --> 00:08:24.526 TO RESULT IN BEING. I THINK THE DEE CREPT ACTIVENESS AN THE ABILITY TO THINK THAT 72 00:08:24.526 --> 00:08:31.880 SOMEBODY SH DELIBERATELY PAYING A SEARCH EDGE GIN TO USE SOMEONE ELSE'S NAME IS A DELIBERATE 73 00:08:31.880 --> 00:08:35.916 ACT AND IT SHOULD NOT BE SANCTIONED BY THE SUPREME COURT. CHIEF JUSTICE 74 00:08:35.916 --> 00:08:40.647 RABNER: ONE MORE QUESTION ABOUT POTENTIAL MISLEADING HERE, THERE IS A DIFFERENCE OF 75 00:08:40.647 --> 00:08:45.370 VIEWS AMONG THE PARTIES AS TO WHETHER IT IS OR IS NOT MISLEADING. WHAT SHOULD 76 00:08:45.370 --> 00:08:51.877 THE COURT LOOK TO IN ORDER TO TRY TO RESOLVE THAT IS THERE AUTHORITATIVE SOURCE OF MATERIAL 77 00:08:51.877 --> 00:08:55.829 THAT WOULD HELP US DECIDE BETWEEN THE TWO SIDES. BONNIE C. FROST: WELL, 78 00:08:55.829 --> 00:09:02.783 YOUR HONOR, CERTAINLY; WE ARE NOT IN THE AGE OF EVEN SIEK CLOE PEED YEAH BRIT TAN KA ANY 79 00:09:02.783 --> 00:09:10.037 LONGER BUT THE AUTHORITY PLACED WOULD BE INVESTIGATIONS THAT ARE BEING DONE BY VARIOUS 80 00:09:10.037 --> 00:09:19.463 IT JOURNALS AND IT'S GOING TO BE A DIFFERENT TYPE OF SEARCH TO FIND OUT THE ACCURATE 81 00:09:19.463 --> 00:09:26.584 INFORMATION, BUT CERTAINLY THERE ARE STUDIES ABOUT WHO ARE USES OF THE INTERNET, WHO ARE 82 00:09:26.584 --> 00:09:36.172 USERS OF THE AD WORDS BECAUSE SEARCH ENGINES SUCH AS GOOGLE WANT TO KNOW THAT BECAUSE 83 00:09:36.172 --> 00:09:41.851 THE MORE SOMEONE CLIKS ON AN AD THE MORE MONEY THEY EARN SO THEY ARE VERY INTERESTED IN 84 00:09:41.851 --> 00:09:47.470 FINDING OUT THE BACK RESEARCH ABOUT WHO DOES CLICK ON WHAT. I WISH I COULD BE MORE PER 85 00:09:47.470 --> 00:09:53.523 SUASIVE ABOUT THAT POINT BUT MAYBE SOMEBODY WILL HELP ME IN THAT REGARD. JUSTICE 86 00:09:53.523 --> 00:09:58.281 ALBIN: I WANT TO RAISE A DIFFERENT CONCERN. I AM NOT SURE IT'S A REAL CONCERN BASED UPON 87 00:09:58.281 --> 00:10:04.881 THE LACK OF REALLY A FULL FACTUAL RECORD HERE. WHEN SOMEONE DOES AN INTERNET 88 00:10:04.881 --> 00:10:11.264 SEARCH A GOOGLE SEARCH OF AN ATTORNEY, NOT ONLY WILL THE ATTORNEY'S NAME SHOW UP, BUT 89 00:10:11.264 --> 00:10:17.095 VARIOUS OTHER THINGS ABOUT THE ATTORNEY. IT COULD BE VERDICTS AND ALL SORTS OF OTHER 90 00:10:17.095 --> 00:10:24.702 THINGS LINKED TO THE ATTORNEY'S REPUTATION, EVENTS. IF SOMEONE IS ABLE TO 91 00:10:24.702 --> 00:10:33.913 PURCHASE THE ATTORNEY'S NAME AND PUT AN ADVERTISEMENT OR ATTORNEYS DO THAT, SIT 92 00:10:33.913 --> 00:10:40.230 PUSHING DOWN ON THE FRONT PAGE THE INFORMATION ABOUT THE ATTORNEY THAT THE CONSUMER 93 00:10:40.230 --> 00:10:48.018 SEARCHED? AND IF THAT IS THE CASE, IS THAT NOT DISADVANTAGING THE ATTORNEY 94 00:10:48.018 --> 00:10:55.487 WHOSE NAME IS BEING -- I WILL USE THIS TERM -- MISAPPROPRIATED BY THE ATTORNEY DOING THE 95 00:10:55.487 --> 00:11:00.415 SEARCH? BONNIE C. FROST: YOUR HONOR, YOU ARE CORRECT BECAUSE YOU WILL SEE, 96 00:11:00.415 --> 00:11:08.905 DEPEND FG ON THE ALGORITHMS OF ANY ONE DAY OF THE SEARCH ENGINE YOU COULD HAVE WUNL ADD, 97 00:11:08.905 --> 00:11:17.193 TWO ADS, SIX OR SEVEN ADS ABOVE THE SEARCH SO THEREFORE IT GETS PUSHED DOWN ON THE PAGE 98 00:11:17.193 --> 00:11:22.850 SO IT'S VERY POSSIBLE THAT THE ORGANIC SEARCH IF YOU LOOK AT IT ON A COMPUTER SCREEN WILL BE 99 00:11:22.850 --> 00:11:30.662 PUSHED TO A SECOND PAGE AND SO THAT THEY MAY NEVER REACH THAT REALLY ORGANIC SEARCH. 100 00:11:30.662 --> 00:11:35.863 JUSTICE ALBIN: WELL, ASSUME THAT THE ATTORNEY'S NAME IS FIRST, BUT FOR THE 101 00:11:35.863 --> 00:11:45.621 FACT THAT OTHER PEOPLE ARE PURCHASING SPACE ON HIS PAGE, EVERYTHING ELSE IN THAT AD IS 102 00:11:45.621 --> 00:11:52.907 GETTING PUSHED DOWN SO HE IS GETTING LESS PLAY TIME WITH THE SON P CONSUMER WHO IS LOOKING 103 00:11:52.907 --> 00:11:57.695 UP HIS NAME. ARE YOU FOLLOWING ME? BONNIE C. FROST: ADS GO, 104 00:11:57.695 --> 00:12:02.751 FIRST, YOUR HONOR, SO IT'S ALWAYS THE AD THAT IS GOING TO BE FIRST AND THAT'S ALWAYS GOING 105 00:12:02.751 --> 00:12:08.446 TO PUSH IT DOWN. JUSTICE ALBIN: IF SOMEONE CAN PURCHASE AN ATTORNEY'S NAME, 106 00:12:08.446 --> 00:12:18.512 CAN AN ATTORNEY PAY TO MAKE CERTAIN CANNOT APPEAR ON HIS OR HER PAGE? IS 107 00:12:18.512 --> 00:12:25.263 THERE GOING TO BE A BIDDING WAR ONCE THIS BECOMES IN FASHION. BONNIE C. FROST: 108 00:12:25.263 --> 00:12:32.555 THE ANSWER IS ABSOLUTELY YES AND IN FACT IT WOULD PROBABLY, IF THIS IS DEEMED ACCEPTABLE, 109 00:12:32.555 --> 00:12:39.566 IT WOULD BE APPROPRIATE FOR OTHER PEOPLE TO MAKE SURE THEY PURCHASE THEIR NAME AND COMBENGSZ 110 00:12:39.566 --> 00:12:43.566 OF THEIR NAME SO OTHER PEOPLE CANNOT PURCHASE THEM, ABSOLUTELY. CHIEF JUSTICE 111 00:12:43.566 --> 00:12:47.849 RABNER: SO SO I AM CLEAR WE'RE TALKING ABOUT A SEARCH RESULTS PAGE, WE'RE NOT TALKING 112 00:12:47.849 --> 00:12:51.785 ABOUT THE ATTORNEYS PAGE. BONNIE C. FROST: WE ARE TALKING ABOUT THE FIRST 113 00:12:51.785 --> 00:12:57.040 SEARCH RESULT PAGE, YES. JUSTICE PATTERSON: YOU'RE SAYING THAT THE ATTORNEY 114 00:12:57.040 --> 00:13:04.393 CAN PAY SO MUCH MONEY THAT THEY CAN KNOCK THE ATTORNEY COMPLETELY OUT OF THE SEARCH THAT IS 115 00:13:04.393 --> 00:13:09.591 FOR THAT ATTORNEY? BONNIE C. FROST: YES. AND I DIDN'T UNDERSTAND THIS MYSELF 116 00:13:09.591 --> 00:13:15.163 YOUR HONOR UNTIL SEVERAL YEARS AGO WHEN A YOUNGER PARTNER STARTED TALKING ABOUT A THING 117 00:13:15.163 --> 00:13:29.524 IN OUR PARTNERS MEETING. I HAD NO IDEA WHAT THEY MEANT BECAUSE, I AM SOMEONE OVER 60. 118 00:13:29.524 --> 00:13:33.478 JUSTICE PATTERSON: THERE IS NOTHING WRONG WITH THAT. BONNIE C. 119 00:13:33.478 --> 00:13:38.892 FROST: IT SHOWS THAT NOT EVERYONE IS THAT SOPHISTICATED AND UNDERSTAND WHAT IS GOING ON 120 00:13:38.892 --> 00:13:43.098 WITH THIS PRACTICE THAT IS HAPPENING THAT PEOPLE ARE ENGAGING IN. JUSTICE 121 00:13:43.098 --> 00:13:47.460 PATTERSON: MY QUESTION IS NOT ABOUT THE GENERAL. I AM TALKING ABOUT THE VERY SPECIFICS. 122 00:13:47.460 --> 00:13:55.791 I HAD UNDERSTOOD THAT NO MATTER HOW MANY ADS APPEAR, THE WEBSITE OF THE ATTORNEY, THE 123 00:13:55.791 --> 00:14:01.544 ORGANIZE SEARCH WOULD BE ON THE PAGE, IT WOULD NOT BE FORCED INTO A SECOND PAGE, IS THAT 124 00:14:01.544 --> 00:14:05.171 JUST WRONG? BONNIE C. FROST: I THINK IT COULD BE, WRONG, YOUR HONOR BECAUSE 125 00:14:05.171 --> 00:14:11.211 NO. 1 NOT ONLY ARE WE TALKING ABOUT WHAT TYPE -- I THINK NO. 1 YOU'RE TALKING ABOUT WHAT 126 00:14:11.211 --> 00:14:16.815 TYPE OF DEVICE YOU'RE LOOKING ON BECAUSE IF YOU'RE LOOKING ON A COMPUTER SCREEN IT MAY 127 00:14:16.815 --> 00:14:21.659 STILL BE ON THE FIRST PAGE BUT IF YOU ARE TALKING ABOUT CELL PHONES FOR EXAMPLE, WHICH, 128 00:14:21.659 --> 00:14:26.641 IF ANY OF YOU HAVE CHILDREN OR GRANDCHILDREN, YOU'LL KNOW THAT EVERYBODY IS SEARCHING 129 00:14:26.641 --> 00:14:32.978 ON CELL PHONES NOW SO WHAT IS THE SCREEN THAT THEY'RE LOOKING AT, IT'S VERY, VERY SMALL 130 00:14:32.978 --> 00:14:39.304 SO IN THAT SENSE THE ORGANIC SITE IS NOT GOING TO APPEAR ON THE FIRST PAGE OF THE CELL PHONE 131 00:14:39.304 --> 00:14:45.572 SCREEN IT COULD BE ON PAGE 4. JUSTICE ALBIN: ARE WE LOOKING AT A SCENARIO 132 00:14:45.572 --> 00:14:55.274 LIKE AN AUCTION TO SEE HOW CLOSE AN ATTORNEY CAN GET NEXT TO CLARNS DAR ROW'S NAME? 133 00:14:55.274 --> 00:15:03.656 BONNIE C. FROST: YES. I THINK THAT'S POSSIBLE, JUDGE. CHIEF 134 00:15:03.656 --> 00:15:08.900 JUSTICE RABNER: OTHER QUESTIONS? ANYTHING YOU WOULD LIKE TO ADD, MS. FROST? 135 00:15:08.900 --> 00:15:11.796 BONNIE C. FROST: NO, THANK YOU YOU, YOUR HONOR. CHIEF JUSTICE 136 00:15:11.796 --> 00:15:17.271 RABNER: MR. CEVASCO. ANDREW J. CEVASCO: GOOD MORNING, YOUR HONOR, I WOULD 137 00:15:17.271 --> 00:15:22.950 LIKE TO JUST SUPPLEMENT WHAT MS. FROST SAID, FOR THE MOST PART THE BERGEN AGAIN COUNTY 138 00:15:22.950 --> 00:15:31.405 BAR ASSOCIATION SUPPORTS THE STATE BAR'S ASSOCIATION. POSITION. IT IS 139 00:15:31.405 --> 00:15:39.067 VERY CLEAR THAT THE SOLE INTENT OF BUYING A CONTENDER'S NAME IS MISS DIRECTION. IF YOU 140 00:15:39.067 --> 00:15:46.468 WANT TO FIND CLARNS DAR ROW, PUT A SEARCH IN AND YOU WILL FIND JOE SMITH IN MANALAPAN 141 00:15:46.468 --> 00:15:51.774 AND I THINK THAT'S THE THING THAT THIS COURT SHOULD BE FOCUSING ON BECAUSE THE ROLE IS 142 00:15:51.774 --> 00:15:58.613 TO GOVERN ATTORNEY CONDUCT. IT IS NOT TO GOVERN THE CONDUCT OF GOOGLE FOR EXAMPLE. I DON'T 143 00:15:58.613 --> 00:16:04.167 THINK THIS COURT IS GOING TO BE ABLE TO REQUIRE GOOGLE TO MAKE A LARGER DESIGNATION OF 144 00:16:04.167 --> 00:16:09.767 ITS ADVERTISEMENT. THE ATTORNEY GENERAL ARGUES THAT BECAUSE OF THE GROWING 145 00:16:09.767 --> 00:16:17.872 DECEMBER INDICATION OF THE PUBLIC THAT THEY DON'T NEED PROTECTION. THE PURPOSE OF THE 146 00:16:17.872 --> 00:16:29.815 ARGUMENT IS TO PROTECT THE PEOPLE WHO ARE GOING TO BE TAKEN ADVANTAGE OF. THE 147 00:16:29.815 --> 00:16:37.124 RULES OF PROFESSIONALISM, THE GROWING FEAR IS TO PROTECT THE PUBLIC BECAUSE THERE ARE 148 00:16:37.124 --> 00:16:43.197 MEMBERS OF THE PUBLIC WHO ARE NOT SOPHISTICATED IN DEALING WITH ATTORNEYS. HIRING AN 149 00:16:43.197 --> 00:16:48.554 ATTORNEY IS NOT THE SAME THING AS GOING ON THE INTERNET AN LOOKING FOR A USED CAR. HIRING 150 00:16:48.554 --> 00:16:53.425 AN ATTORNEY AND TRYING TO LOCATE A PARTICULAR ATTORNEY WITH A PARTICULAR REPUTATION IS 151 00:16:53.425 --> 00:17:02.071 NOT THE SAME THING AS LOOKING FOR A TRADEMARK ARTICLE OR SUBJECT TRADEMARK PROTECTIONS. 152 00:17:02.071 --> 00:17:09.484 THIS IS ABOUT REGULATING THE PROFESSION OF ATTORNEYS. FRANKLY, I WOULD SAY 153 00:17:09.484 --> 00:17:14.364 IT THIS WAY, IT IS NOT ON THE PUBLIC TO FIGURE OUT WHETHER THEY HAVE BEEN MISLED OR TO 154 00:17:14.364 --> 00:17:23.468 AVOID ANOTHER INTERNET SCAM. IT IS ON THE PROFESSION NOT TO PERP TRAIT THIS IN THIS 155 00:17:23.468 --> 00:17:28.067 FIRST PLACE. ALSO I WOULD LIKE TO REITERATE THE FACT THAT ALLOWING THE USE 156 00:17:28.067 --> 00:17:34.695 OF THE CONTENDERS NAME IN THE KEYWORD IMPEDES THE INFORMATION, IT DOES NOT ASSIST THE 157 00:17:34.695 --> 00:17:41.008 PUBLIC IN FINDSING WHAT THEY ARE LOOKING FOR. IF SOMEONE INPUTS A SPECIFIC 158 00:17:41.008 --> 00:17:47.221 ATTORNEY'S NAME INTO A SEARCH ENGINE IT IS BECAUSE THEY HAVE BEEN RECOMMENDED, THEY 159 00:17:47.221 --> 00:17:54.552 HEARD ABOUT THAT PERSON FROM ANOTHER SOURCE OR THEY READ AN ARTICLE. THERE IS. 160 00:17:54.552 --> 00:18:00.723 IN LOOKING FOR THAT ATTORNEY THEY EVER GOT TO SCROLL THROUGH DOZEN SZ OF ADVERTISEMENTS 161 00:18:00.723 --> 00:18:07.696 TO FIND THE WEBSITE OF THAT ATTORNEY, THAT'S IMPEDING THEIR SEARCHINGS THAT'S MISS 162 00:18:07.696 --> 00:18:14.332 DIRECTING THEM, THAT'S MISLEADING THEM. IT'S DISHONEST, IT'S DECEITFUL. THE 163 00:18:14.332 --> 00:18:19.802 OTHER THING I WOULD LIKE TO POINT OUT AND THIS ONE THING I WILL BRIEF BECAUSE IT CAME 164 00:18:19.802 --> 00:18:25.532 UP AFTER OUR BRIEF WAS SUBMITTED. NAMES ARE IMPORTANT. AS THE STATE BAR 165 00:18:25.532 --> 00:18:30.877 SUBMITTED, ATTORNEYS SPENT YEARS DEVELOPING THEIR REPUTATIONS AND CLIENTS RELY ON THAT. 166 00:18:30.877 --> 00:18:39.741 CLIENT RELY ON THE REPUTATION OF AN ATTORNEY. THIS COURT TOOK A LOOK AT R 167 00:18:39.741 --> 00:18:49.761 PC 745 REGARDING TRADE NAMES AN IT UTILIZED THE USE OF TRADE NAMES, IT SAID TRADE NAMES 168 00:18:49.761 --> 00:18:56.421 ARE OKAY, HOWEVER, THIS COURT WAS VERY SPECIFIC THAT USING A TRADE NAME COULD NOT USE 169 00:18:56.421 --> 00:19:01.934 THE NAME OF AN ATTORNEY WHO WAS NOT AFFILIATED WITH THEM UNLESS THAT PERSON HAD BEEN 170 00:19:01.934 --> 00:19:10.151 AFFILIATED AND HAD DIED OR RETIRED SO THIS COURT IS RECOGNIZING THAT. JUSTICE 171 00:19:10.151 --> 00:19:16.643 PATTERSON: MR. CEVASCO, HOW CAN THE COURT EMPIRICALLY MAKE A DETERMINATION ON WHETHER 172 00:19:16.643 --> 00:19:22.166 CONSUMERS ARE BEING MISLED AND I SAY THAT BECAUSE HAVING A LITTLE BIT OF EXPERIENCE IN 173 00:19:22.166 --> 00:19:31.450 MY PRACTICE WITH CONSUMER SURVEYS, YOU CAN TAKE TWO CONSUMER SURVEYS ON EXACTLY THE SAME 174 00:19:31.450 --> 00:19:41.796 AD #K07 ME AND GET WILDLY DISPARATE RESULTS, NOT THE ARRAY OF MARKETING ANALYSIS THAT 175 00:19:41.796 --> 00:19:52.465 IS -- WHAT EVERY AGREES AND SO HOW CAN THE COURTS MAKE A DETERMINATION AGAINST THIS MISLEADING 176 00:19:52.465 --> 00:20:02.696 PRACTICE WITHOUT DOING SURVEYS OR HAVING THE BENEFIT OF SURVEYS THAT EXISTED. 177 00:20:02.696 --> 00:20:07.115 ANDREW J. CEVASCO: YOUR HONOR, I WOULD SUGGESTED THAT YOU ARE A HUNDRED PERCENT CORRECT. 178 00:20:07.115 --> 00:20:21.313 AND I DON'T KNOW THE. THIS WONDERFULLY ACCURATE SURVEY AT THE VERY 179 00:20:21.313 --> 00:20:30.424 BEGINNING TO CONVINCE ALL OF YOU THAT PEOPLE. THE DIVISION LEVEL CHANGED, 180 00:20:30.424 --> 00:20:39.893 GOOGLE HAS IT'S CHANGE, I DON'T THINK THIS COURT SHOULD EVER BE ABLE TO GO SERIOUSLY SATISFY 181 00:20:39.893 --> 00:20:48.067 ITSELF YET, 10 PERCENT OF THE POPULATION DEALS WITH IT THIS WAY AND THAT'S WHY I THINK. 182 00:20:48.067 --> 00:20:54.123 I DON'T THINK THAT THE FOCUS HERE IS REALLY ON TRYING TO BE EM BEER RIKLY DETERMINE WHETHER 183 00:20:54.123 --> 00:20:59.186 OR NOT SOMEONE HAS BEEN MISLED THE FOCUS HAS TO BE ON THE ATTORNEY/CLIENT'S CONDUCT HERE 184 00:20:59.186 --> 00:21:04.073 AND I THINK IF YOU LOOK AT THE ATTORNEY'S CONDUCT IT COULD NOT BE HERE, THERE IS NO REASON 185 00:21:04.073 --> 00:21:14.858 TO PAY FOR A GOOGLE AD WHERE IT EXCLUDES THE NAME OF A COMPETITOR UNLESS I, OR TO BE FOOLED 186 00:21:14.858 --> 00:21:19.722 INTO THINKING WHEN THEY CLICK ON MY AD THEY ARE CLICKING ON THAT ATTORNEY'S AD THAT IS 187 00:21:19.722 --> 00:21:24.705 THE ONLY REASON THAT YOU WOULD DO THAT, THERE ARE PLENTY OF DESCRIPTION THAT DESCRIBE 188 00:21:24.705 --> 00:21:44.574 STATE, ESTATE PLANNING, PERJ INJURY LAWSUITS, WHATEVER KINDS. IT BUT TO TRY 189 00:21:44.574 --> 00:22:04.386 TO USE PAY MONEY AND APPARENTLY PAY GOOD MONEY TO. THE COURT IS IN CONTROL 190 00:22:04.386 --> 00:22:10.986 OF HOW THEY LOOK UP CASE SIS, THE COURT CAN'T SAY, WELL YOU HAVE TO PUT THE IN THE TOP 191 00:22:10.986 --> 00:22:16.403 RESEARCHES THAT SHOW UP THAT'S NEVER GOING TO HAPPEN. JUSTICE LA VECCHIA: 192 00:22:16.403 --> 00:22:23.955 IS YOUR POINT, EXCHANGE NAME PROVISION SUGGESTING THAT THIS IS IS A VIOLATION OF THAT 193 00:22:23.955 --> 00:22:28.936 NEW RULE. ANDREW J. CEVASCO: NO YOUR HONOR, I DON'T THINK IT'S A VIOLATION 194 00:22:28.936 --> 00:22:38.640 BUT IT IS A TENDENCY OF THIS COURT'S RECOGNITION OF THE IMPORTANCE. IT IS. 195 00:22:38.640 --> 00:22:43.924 JUSTICE LA VECCHIA: THE NAME IN THE SEARCH IT IS APPROPRIATE YATING THE ATTORNEY WHO IS 196 00:22:43.924 --> 00:22:48.899 NOT INVOLVED IN YOUR, TO USE YOUR EXAMPLE, PRACTICE. ANDREW J. CEVASCO: 197 00:22:48.899 --> 00:22:55.574 EXACTLY RIGHT, YOUR HONOR, THAT'S EXACTLY RIGHT, SO THALS EASE REALLY IS THE MY COLLEAGUE, 198 00:22:55.574 --> 00:23:04.098 IT'S NOT ON THE PUBLIC, THE ONLY THING ON THE PROFESSION AND THIS COURT, THE JOB OF THE 199 00:23:04.098 --> 00:23:13.285 COURT IS TO REGULATE THAT, THE, THE ACTIVITY IS DIS HONESTLY. ANDREW J. CEVASCO: 200 00:23:13.285 --> 00:23:17.912 THANK YOU. CHIEF JUSTICE RABNER: THANK YOU YOU, MR. CEVASCO, MR. GAF KNEE, 201 00:23:17.912 --> 00:23:24.688 GAF GAF THANK YOU, MR. CHIEF JUS STIGS, THERE WAS SOME DISCUSSION EARLIER ABOUT THE TEXAS 202 00:23:24.688 --> 00:23:32.226 BAR AND VIEW ON THIS ISSUE AS A FORMER RESIDENT AND A MEMBER OF THIS TEXAS BAR I AM FAMILIAR 203 00:23:32.226 --> 00:23:43.162 WITH THE LATITUDE AFFORDED TO A TEXAS ATTORNEY ADVERTISING, RELATIVE TO THOSE STANDARDS, 204 00:23:43.162 --> 00:23:49.340 NEW JERSEY'S SYSTEM DOES AN EXCELLENT JOB OF PROMOTING PUBLIC CONFIDENCE IN THE 205 00:23:49.340 --> 00:23:55.864 PROFESSION. THE NEW JERSEY DEFENSE SOERN YAGS SUBMITS THAT THE PURCHASE OF 206 00:23:55.864 --> 00:24:01.230 CERTAIN INL TER NET KEYWORD ADVERTISEMENTS DOES HARM TO THAT PUBLIC CONFIDENCE AND IS 207 00:24:01.230 --> 00:24:11.890 A VIOLATION OF R PC 7.1. AS WE DISCUSSED EARLIER, THAT R PC PROHIBITS 208 00:24:11.890 --> 00:24:18.474 ATTORNEY ADVERTISE MTHS WITH MISLEADING STATEMENTS OR OMISSIONS THAT LEAD TO MATERIAL 209 00:24:18.474 --> 00:24:25.952 MISREPRESENTATION. IT IS OUR VIEW THAT THE PURCHASE OF AN INTERNET KEYWORD 210 00:24:25.952 --> 00:24:33.634 ADVERTISEMENT IS A COMMUNICATION AND THAT IS BECAUSE IT IS INEXTRICABLY LINKED TO THE 211 00:24:33.634 --> 00:24:39.356 ADVERTISEMENT STOE THE PURCHASE ITSELF IS STILL PART OF THE COMMUNICATION. IN 212 00:24:39.356 --> 00:24:46.631 OTHER WORDS, THIS TYPE OF ADVERTISEMENT WOULD NOT EXIST BUT FOR THE PURCHASE OF THE KEYWORD 213 00:24:46.631 --> 00:24:54.896 AND AN ATTORNEY WOULD HAVE NO REASON TO PURCHASE A KEYWORD UNLESS IT WAS ATTACHED TO AN 214 00:24:54.896 --> 00:25:02.809 ADVERTISEMENT AND SO THE RESULTING ADVERTISEMENT IN WHATEVER FORM IT IS GENERATED MUST 215 00:25:02.809 --> 00:25:11.816 COMPLY WITH 7.1 AND UNLESS IT IS CLEARLY AND UNEQUIVOCALLY LABELED AS AN ADVERTISEMENT, 216 00:25:11.816 --> 00:25:17.950 THAT IS AN OMISSION THAT IS A MATERIAL REPRESENTATION -- A MISREPRESENTATION IN OUR 217 00:25:17.950 --> 00:25:24.933 VIEW. YOU KNOW, WE'RE ALL AWARE OF THE SHORT SHELF LIFE OF A LOT OF INTERNET 218 00:25:24.933 --> 00:25:34.815 COMPANIES AN PLATFORMS AND THERE IS NO WAY TO IMPOSE A RULE OR STANDARD THAT WILL APPLY 219 00:25:34.815 --> 00:25:41.392 TO EVERYTHING. HOWEVER, I JUST WANT TO TOUCH BRIEFLY ON THE VARIETY OF PLATFORMS THAT ARE 220 00:25:41.392 --> 00:25:50.902 IMPLICATED IN THIS ISSUE. THE BRIEFS PRIMARILY DISCUSSED THE USE OF GOOGLE 221 00:25:50.902 --> 00:25:57.360 ADD WORDS AND THAT IS BY FAR THE MOEGS UTILIZED FLAT FORM FOR THIS TYPE OF ADVERTISEMENT, 222 00:25:57.360 --> 00:26:05.970 HOWEVER, IT IS NOT THE ONLY PLATFORM AT ALL. TWITTER, FACEBOOK, YELP WHICH IS A BUSINESS 223 00:26:05.970 --> 00:26:12.110 REVIEW SERVICE ALL INCORPORATE ADVERTISEMENT INTO THEIR PLATFORM AND THEY ARE ALL UTILIZED 224 00:26:12.110 --> 00:26:17.963 IN KEYWORD PURCHASES TO SOME EXTENT IN GENERATING THOSE ADVERTISEMENTS. GOOGLE 225 00:26:17.963 --> 00:26:24.706 IS ALSO ITSELF NOT LIMITED TO INTERNET SEARCHES. THERE ARE A VARIETY OF OTHER PLATFORMS 226 00:26:24.706 --> 00:26:32.021 WITHIN THE GOOGLE SYSTEM, G MAIL, FOR INSTANCE AN E-MAIL SERVICE USES THE CONTENT OF E-MAILS 227 00:26:32.021 --> 00:26:40.652 COMING AND GOING FROM ONE'S ACCOUNT IN ORDER TO GENERATE ADVERTISEMENTS, AS WELL AND SO 228 00:26:40.652 --> 00:26:48.562 IN OUR VIEW THE PURCHASE OF AN ADVERTISEMENT HAS TO BE CLEARLY LABELED AND ANY REGULATION 229 00:26:48.562 --> 00:26:57.779 WOULD THEREFORE BE SUBJECT TO THE CENTRAL HEART MAN TEST WHICH WAS DISCUSSED IN OUR BRIEF. 230 00:26:57.779 --> 00:27:03.640 THE PRIMARY POINT THERE IS WHETHER OR NOT THERE ARE FREE SPEECH IMPLICATIONS IS WHETHER OR 231 00:27:03.640 --> 00:27:11.693 NOT THE ADVERTISEMENT IS MISLEADING AND THAT MISLEADING STANDARD IN CENTRAL HUDSON IS 232 00:27:11.693 --> 00:27:18.455 DISTINGUISHABLE FROM R PC 7.1 IN FACT THE SUPREME COURT THERE DESCRIBES THAT CENTRAL HUDSON 233 00:27:18.455 --> 00:27:25.137 TEST AS MORE LIKELY TO DECEIVE THE PUBLIC THAN TO INFORM I'M. AND, YOUR HONOR, THAT STANDARD 234 00:27:25.137 --> 00:27:31.866 I THINK IS THE MOST IMPORTANT ANALYSIS THAT NEEDS TO BE MADE HERE BECAUSE THERE IS INSUFFICIENT 235 00:27:31.866 --> 00:27:38.060 FACTS ON THIS THE RECORD TO DETERMINE WHETHER OR NOT THE TYPES OF ADVERTISEMENTS THAT ARE 236 00:27:38.060 --> 00:27:45.305 AFFECTED BY THE KEYWORD PURCHASES ARE MORE LIKELY TO DECEIVE THE PUBLIC THAN NOT. 237 00:27:45.305 --> 00:27:52.923 THE STATE BAR OFFERED A PRETTY CLEAR EXAMPLE OF A LABEL OF AN ADVERTISEMENT THAT MIGHT BE 238 00:27:52.923 --> 00:28:00.133 UNCLEAR, BUT, AS AGAIN, WAS DISCUSSED BRIEFLY, EARLIER, THE PLATFORM OR THE DEVICE THAT IS 239 00:28:00.133 --> 00:28:05.677 USED FOR THE ADVERTISEMENT CAN AFFECT THE CLARITY WITH WHICH SOMETHING IS LABELED AS AN 240 00:28:05.677 --> 00:28:14.776 ADVERTISEMENT. THERE ARE A NUMBER OF COMPLEX ISSUES THAT GO INTO THAT AND, AGAIN, THE 241 00:28:14.776 --> 00:28:21.798 VIEW IS THAT ADDITIONAL FACTUAL SUPPORT AND IT'S MORE OF A FACTUAL RECORD IS REQUIRED 242 00:28:21.798 --> 00:28:32.571 FOR PROPER REGULATION OF THIS ISSUE. THERE ARE A LOT OF EXAMPLES OF BORDERLINE 243 00:28:32.571 --> 00:28:39.354 CASES THAT IMPLICATE THIS ISSUE AS WELL, IF ANYBODY HAS USED AMAZON FOR A PURCHASE, THERE 244 00:28:39.354 --> 00:28:47.177 IS A PORTION OF AN AMAZON PAGE THAM DESCRIBE OTHER ITEMS THAT YOU SEARCH FOR, YOU SEARCH 245 00:28:47.177 --> 00:28:52.317 FOR AN ITEM. HERE ARE OTHER ITEMS THAT PEOPLE SEARCHED FOR WHEN THEY SEARCHED FOR THIS 246 00:28:52.317 --> 00:28:58.188 ITEM, THAT SORT OF PROCESS IS AVAILABLE IN GOOGLE AND IT'S NOT A STRETCH TO IMAGINE THAT 247 00:28:58.188 --> 00:29:07.270 SOME OTHER TYPES OF PLATFORMS WILL CREATE AND THEN MONDAY NET TIEZ THAT DEVICE. I DON'T 248 00:29:07.270 --> 00:29:16.089 KNOW PERSONALLY IF AM SON MONDAY NET TIEZ ES IT BUT IF YOU SEARCH FOR ONE TYPE OF BOOK 249 00:29:16.089 --> 00:29:22.386 AN IT SAYS OH HERE IS THE SEQUEL, PEOPLE ALSO SEARCH FOR THE SEQUEL AS I SAID IT'S NOT 250 00:29:22.386 --> 00:29:28.932 UNAVOIDABLE THAT SOME TYPE OF PLATFORM COULD USE THAT AND MONDAY NET TIEZ IT SO THERE ARE 251 00:29:28.932 --> 00:29:35.677 A VARIETY OF IMPLICATIONS TO ANY REGULATION ON THIS ISSUE THAT GO BEYOND A SEARCH AND 252 00:29:35.677 --> 00:29:48.409 THAT IN OUR VIEW REQUIRES AN ADDITIONAL FACTUAL RECORD TO MAKE THESE DERMSZ. 253 00:29:48.409 --> 00:29:51.811 RYAN J. GAFFNEY: MRR CHIEF JUSTICE, I COULDN'T HEAR YOU. CHIEF JUSTICE RABNER: 254 00:29:51.811 --> 00:29:57.013 I SAID THANK YOU. I THOUGHT YOU REACHED THE END OF YOUR ARGUMENT. RYAN J. 255 00:29:57.013 --> 00:30:02.152 GAFFNEY: JUST ONE FINAL NOTE, YOUR HONOR, THAT MR. CEVASCO HAD NOTED BEFORE ABOUT THE 256 00:30:02.152 --> 00:30:07.882 IMPLICATION OF TRADE NAMES AN THE COURT'S USE OF RULING ON THAT AND I WOULD LIKE TO NOTE 257 00:30:07.882 --> 00:30:13.712 ADDITIONALLY THAT THE COMPLEXITY OF SEARCHES IN GOOGLE AND OTHER INTERNET SEARCH PLATFORMS 258 00:30:13.712 --> 00:30:19.447 IS SOMETHING THAT ADDS TO THE COMPLEXITY OF THE ISSUE THAT REQUIRES AN ADDITIONAL FACTUAL 259 00:30:19.447 --> 00:30:26.954 FOUNDATION. ONE OF THE ONLY THING THAT WAS ADDRESSED IN OPINION 7:35 WAS THE PURCHASE 260 00:30:26.954 --> 00:30:34.385 OF ANOTHER ATTORNEY'S NAME, HOWEVER WITH THE LIBERALIZE SAGS OR PERMISSION OF THE USE 261 00:30:34.385 --> 00:30:40.283 OF TRADE NAMES THAT IMPLICATES WHETHER OR NOT A TRADE NAME MAY BE PURCHASED AND HOW GENERAL 262 00:30:40.283 --> 00:30:47.546 THAT TRADE NAME WOULD HAVE TO BE BEFORE IT WOULD BE PERMISSIBLE OR IMPERMISSIBLE TO UTILIZE 263 00:30:47.546 --> 00:30:56.232 THAT IN AN INTERNET KEYWORD PURCHASE, LAW H Q, FOR EXAMPLE, WOULD IT BE PERMISSIBLE TO 264 00:30:56.232 --> 00:31:03.589 PURCHASE THE KEYWORD LAW HEADQUARTERS IF THE NAME IS LAW H Q, AGAIN, YOUR HONOR, THESE 265 00:31:03.589 --> 00:31:10.708 ARE THE TYPES OF ISSUES THAT ARE PRESENTED BY THE OPINION 735 THAT IN OUR VIEW REQUIRE 266 00:31:10.708 --> 00:31:21.523 ADDITIONAL FACTUAL SUPPORT. JUSTICE ALBIN: SO FOR ALL. JUSTICE 267 00:31:21.523 --> 00:31:28.700 ALBIN: THAT'S ALSO A GENERAL DESCRIPTOR TERM FOR LAW FIRMS. RYAN J. GAFFNEY: 268 00:31:28.700 --> 00:31:34.233 CORRECT AND THOSE TYPES OF ISSUES ARE NOT ADDRESSED BY OPINION 735, HOWEVER, THE 269 00:31:34.233 --> 00:31:38.604 RESULTING RULING OR ANYTHING ADOPTED BY THE COURT WOULD IMPLICATE ALL OF THESE ISSUES. 270 00:31:38.604 --> 00:31:51.482 CHIEF JUSTICE RABNER: THANK YOU YOU. - - - - - - - 271 00:31:51.482 --> 00:31:51.488 - - - - - - - IN RE OPINION NUMBER 735. - - - - - - - 272 00:31:51.488 --> 00:31:51.497 - - - - - - - DONNA ARONS: GOOD MORNING MAY IT PLEASE THE 273 00:31:51.497 --> 00:31:57.289 COURT AS THE COMMITTEE ON PROFESSIONAL ETHICS FOUND THE ISSUES PRESENTED HERE INVOLVES 274 00:31:57.289 --> 00:32:03.532 ADVERTISING USING A SEARCH ENGINE THAT COULD RESULT IN THE PLACEMENT OF AN AD IN THE 275 00:32:03.532 --> 00:32:07.798 SEARCH RESULTS WHEN A USER ENTERS THE NAME OF A COMPETING ATTORNEY. THERE WAS NOTHING 276 00:32:07.798 --> 00:32:13.549 IN THE INQUIRY TO SUGGEST THAT THE AD ITSELF WOULD BE MISLEADING OR THAT THE LANGUAGE 277 00:32:13.549 --> 00:32:18.939 OF THE AD WOULD SUGGEST ANY SORT OF RELATIONSHIP BETWEEN THE COMPETING ATTORNEY. THE 278 00:32:18.939 --> 00:32:24.798 ISSUE CENTERED ON HOW THE AD WOULD SHOW UP WHEN A USER ENTERS THE NAME OF THE COMPETING 279 00:32:24.798 --> 00:32:30.153 ATTORNEY AS PART OF A SEARCH. ANALYZING THOSE FACTS THE COMMITTEE FOUND THAT A PRACTICE 280 00:32:30.153 --> 00:32:36.014 THAT FACILITATES THE PLACEMENT OF AN ADVERTISEMENT BUT NOTHING MORE DID NOT 281 00:32:36.014 --> 00:32:43.543 VIOLATE THE RULES OF PROFESSIONAL CONDUCT AND DID NOT VIOLATE THE RULE PROHIBITING ATTORNEY 282 00:32:43.543 --> 00:32:48.493 MISCONDUCT. AS ANYONE WHO USES THE INTERNET KNOWS VIRTUALLY ANY SEARCH WILL TURN UP A 283 00:32:48.493 --> 00:32:54.321 MIX OF RESULTS INCLUDING ADS CHL THAT IS THE NATURE OF THE INTERNET. SO IN AND OF ITSELF 284 00:32:54.321 --> 00:32:59.056 HAVING AN AD APPEAR WHEN THE USER IS SEARCHING FOR SOMETHING BY NAME IS COMMON AND EXPECTED 285 00:32:59.056 --> 00:33:05.944 AND THE FACT AND IN FACT IS OFTEN A BENEFIT TO USERS WHO MAY WANT TO COMPARE DIFFERENT 286 00:33:05.944 --> 00:33:11.508 OPTIONS. THE STATE BAR AND THE BERGEN BAR RAISE AN IMPORTANT CONCERN THAT THIS ADVERTISING 287 00:33:11.508 --> 00:33:18.628 TECHNIQUE COULD MISLEAD CONSUMERS AND CAUSE THEM TO RETAIN A LISTEN LAW FIRM THAN THE 288 00:33:18.628 --> 00:33:22.503 ONE THEY THOUGHT THEY WERE RETAINING BUT THERE IS NOTHING IN THE HYPOTHETICAL THAT SUGGESTED 289 00:33:22.503 --> 00:33:28.330 THE ADVERTISING LAW FIRM WOULD BE OBSCURING ITS OWN IDENTITY. IN HAVING EXAMINED THAT 290 00:33:28.330 --> 00:33:32.507 ISSUE THE COMMITTEE BELIEVED THAT THE CURRENT RULES OF PROFESSIONAL CONDUCT AND OPINIONS 291 00:33:32.507 --> 00:33:39.254 INTERPRETING THEM PROVIDE ADEQUATE PROTECTION AGAINST DECEITFUL OR MISLEADING CONDUCT. 292 00:33:39.254 --> 00:33:44.509 IN THAT VEIN I WOULD POINT OUT THAT THE COMMITTEE ON ATTORNEY ADVERTISING IN ITS OPINION 293 00:33:44.509 --> 00:33:51.021 NUMBER 32 TALKS ABOUT WHETHER A DOMAIN NAME FOR A LAW FIRM, WHICH IS THE THING YOU CLICK 294 00:33:51.021 --> 00:33:58.080 ON THE DOE NAME ON THE URL WHETHER THAT HAS TO BE THE NAME OF THE LAW FIRM OR WHETHER 295 00:33:58.080 --> 00:34:02.654 IT COULD BE SOME OTHER DESCRIPTIVE TERM AND THE COMMITTEE FOUND THAT IT COULD BE A DIFFERENT 296 00:34:02.654 --> 00:34:08.478 TERM BUT IF IT WAS NOT THE NAME OF THE LAW FIRM THEN THE LINK MUST TAKE YOU TO A WEB PAGE 297 00:34:08.478 --> 00:34:15.022 THAT CLEARLY IDENTIFIED THE LAW FIRM AND ITS PHYSICAL ADDRESS. IN SHORT THE COMMITTEE 298 00:34:15.022 --> 00:34:23.075 CONCLUDED THAT THE MERE FACT -- PROCESS OF DISPLAYING THE AD WOULD NOT CREATE ANY FALSE 299 00:34:23.075 --> 00:34:27.914 IMPRESSIONS ABOUT THEIR RESPECTIVE LAWYER'S RELATIONSHIP OR ASSOCIATION AND THAT SUCH 300 00:34:27.914 --> 00:34:31.184 A PRACTICE SHOULD NOT SUBJECT ATTORNEYS TO DISCIPLINE UNDER THE RULES OF PROFESSIONAL 301 00:34:31.184 --> 00:34:37.084 CONDUCT. I'M HAPPY TO ANSWER ANY QUESTIONS THAT YOU MAY HAVE. JUSTICE ALBIN: 302 00:34:37.084 --> 00:34:44.953 MS. AR RONS JUST LOOKING AT THE A C P.E.'S OPINION IT SEEMS TO ACKNOWLEDGE THAT THERE'S 303 00:34:44.953 --> 00:34:52.214 INFORMATION WE DON'T KNOW. I'M LOOKING AT PAGE 3 OF THE OPINION WHERE IT SAYS THE WEBSITES 304 00:34:52.214 --> 00:34:58.596 OF THE KEY WORD PURCHASER'S LAW FIRM AND THE COMPETITOR'S LAW FIRM WILL PRESUMABLY BOTH 305 00:34:58.596 --> 00:35:05.756 APPEAR IN THE RESULTING SEARCH, AND SO PRESUMABLY INDICATES LACK OF CERTAINTY, AND THE 306 00:35:05.756 --> 00:35:12.487 NEXT SENTENCE SAYS, THE KEY WORD PURCHASER'S WEBSITE ORDINARILY WILL APPEAR AS A PAID 307 00:35:12.487 --> 00:35:19.890 OR SPONSORED WEBSITE AND THAT ALSO SUGGESTED THIS LACK OF CERTAINTY ON THAT MATTER. SO 308 00:35:19.890 --> 00:35:26.507 GIVEN THE LACK OF CERTAINTY WHY WOULDN'T THIS COURT BENEFIT BY A FULLER RECORD THAN THE 309 00:35:26.507 --> 00:35:31.100 ONE THAT WAS BEFORE THE COMMITTEE WHEN IT RENDERED ITS OPINION? DONNA 310 00:35:31.100 --> 00:35:40.086 ARONS: I THINK, YOU KNOW, OBVIOUSLY IF THE COURT WANTS A MORE FULL RECORD I'M JUST NOT 311 00:35:40.086 --> 00:35:45.661 SURE YOU'RE EVER GOING TO GET A FINAL DECISION ON THAT -- I MEAN A FINAL -- I CAN TELL 312 00:35:45.661 --> 00:35:50.912 YOU RIGHT NOW ACCORDING TO GOOGLE FOR EXAMPLE, THEY SAY THAT THEIR ADS WILL ALWAYS BE 313 00:35:50.912 --> 00:35:56.130 LABELED AS ADS BUT OF COURSE YOU KNOW, ATTORNEYS DON'T HAVE CONTROL OVER HOW THE DIFFERENT 314 00:35:56.130 --> 00:36:02.162 SEARCH ENGINES LABEL THINGS. I THINK THE COMMITTEE WAS CONCERNED MAINLY WITH THE -- 315 00:36:02.162 --> 00:36:08.541 WITH THE IDEA OF WHETHER A USER WOULD BE MISLED INTO BELIEVING THAT THEY WERE ACTUALLY 316 00:36:08.541 --> 00:36:15.021 ENGAGING A DIFFERENT LAW FIRM. THE COMMITTEE FELT THAT HAVING AN AD APPEAR AND PERHAPS 317 00:36:15.021 --> 00:36:21.394 DIVERTING A CONSUMER TO A DIFFERENT LAW FIRM THAN THE ONE THEY ORIGINALLY SEARCHED FOR 318 00:36:21.394 --> 00:36:29.487 WAS NOT AN UNFAIR OR DECEPTIVE OR MISLEADING PRACTICE AND DIDN'T GO ON TO ATTORNEY 319 00:36:29.487 --> 00:36:32.626 MISCONDUCT. JUSTICE ALBIN: ASSUMING IT'S NOT MISLEADING LET'S PUT THAT ASIDE 320 00:36:32.626 --> 00:36:39.870 FOR A SECOND, TO THE EXTENT THAT A PERSON CAN PURCHASE SPACE ON ANOTHER GIVEN USING KEY 321 00:36:39.870 --> 00:36:46.174 WORD ON ANOTHER ATTORNEY'S PAGE WHERE THE ATTORNEY'S LAW FIRM WOULD BE THERE, AND OTHER 322 00:36:46.174 --> 00:36:54.836 INFORMATION, MAYBE A WIKIPEDIA PAGE, MAYBE VER DEKS TO THE EXTENT THAT SOMEONE CAN ACTUALLY 323 00:36:54.836 --> 00:37:01.758 PUSH DOWN OTHER INFORMATION ABOUT THE ATTORNEY SEARCHED, IS THAT NOT DISADVANTAGING THE 324 00:37:01.758 --> 00:37:10.490 ATTORNEY WHOSE NAME HAS BEEN MISAPPROPRIATED AND WOULDN'T THAT CONCEIVABLY BE AN RPC 325 00:37:10.490 --> 00:37:14.521 VIOLATION? GO AHEAD. DONNA ARONS: SO THE ISSUE THAT THE COMMITTEE WAS LOOKING 326 00:37:14.521 --> 00:37:22.238 AT WAS A SEARCH ENGINE AND I DO WANT TO JUST POINT OUT THAT YOU KNOW ESSENTIALLY A GOOGLE 327 00:37:22.238 --> 00:37:30.467 SEARCH TURNS UP FREE ADS FOR MANY MANY ENTITIES, I MEAN YOU DON'T PAY TO HAVE AN ORGANIC 328 00:37:30.467 --> 00:37:37.920 SEARCH RESULT. IT'S -- YOU MAKE YOUR WEBSITE VEIL TO GOOGLE AND THEY INCLUDE IT IN THEIR 329 00:37:37.920 --> 00:37:45.011 MILLIONS PROBABLY BILLIONS OF WEBSITE THAT THEY SEARCH. NOBODY HAS A RIGHT TO A PARTICULAR 330 00:37:45.011 --> 00:37:50.976 SEARCH RESULT ON ANY OF THE SEARCH ENGINES. THIS IS A SERVICE THAT GOOGLE PROVIDES OR 331 00:37:50.976 --> 00:37:58.653 A BUSINESS THAT GOOGLE HAS WHERE THEY CATEGORIZE AND YOU KNOW CATALOG ALL THESE DIFFERENT 332 00:37:58.653 --> 00:38:06.345 WEBSITE AND PRODUCE SEARCHES IN AN EFFORT TO MAKE MONEY AND TO DIRECT YOU KNOW, CONTENT 333 00:38:06.345 --> 00:38:10.719 TO USERS THAT THEY THINK WOULD BE RELEVANT. JUSTICE ALBIN: BUT THIS IS NOT 334 00:38:10.719 --> 00:38:14.788 THIS IS NOT A QUESTION OF WHAT GOOGLE DOES. THIS IS A QUESTION OF THE SUPREME COURT'S 335 00:38:14.788 --> 00:38:23.692 RESPONSIBILITY TO SUPER INTEND THE PRACTICE OF LAW. AND THE QUESTION IS IF PURCHASING 336 00:38:23.692 --> 00:38:33.733 ANOTHER ATTORNEY'S NAME WILL DISADVANTAGE THE ATTORNEY'S NAME WHO'S BEEN USED BECAUSE 337 00:38:33.733 --> 00:38:44.036 ON GOOGLE OR ON SOME OTHER SITE THAT PERSON'S NAME IS GETTING FURTHER DOWN A LIST, WOULD 338 00:38:44.036 --> 00:38:49.523 THAT NOT BE OF CONCERN TO US? DONNA ARONS: I MEAN, YOU KNOW OBVIOUSLY, 339 00:38:49.523 --> 00:38:57.289 THAT'S -- THAT'S THE ISSUE HERE IS WHETHER THAT IS OF CONCERN TO YOU AND TO WHAT DEGREE. 340 00:38:57.289 --> 00:39:02.534 I MEAN THE COMMITTEE ISSUE IS THAT FIRST OF ALL, IT'S NOT NECESSARILY CLEAR THAT IT WOULD 341 00:39:02.534 --> 00:39:07.004 PUSH THE ORGANIC SEARCH DOWN. IT'S NOT JUST PRICE THAT DETERMINES PLACEMENT ON A SEARCH 342 00:39:07.004 --> 00:39:11.080 PAGE BUT. JUSTICE ALBIN: WE DON'T KNOW THAT'S ONE OF THE REASONS WHY SOME 343 00:39:11.080 --> 00:39:19.727 PEOPLE ARE CALLING FOR A FULLER RECORD EITHER BEFORE THE A C P.E. OR SOME OTHER COMMITTEE. 344 00:39:19.727 --> 00:39:24.269 WHAT WOULD BE WRONG WITH THAT? DONNA ARONS: RIGHT. WELL, BECAUSE, I MEAN 345 00:39:24.269 --> 00:39:29.273 YOU COULD CERTAINLY DO THAT. I'M OBVIOUSLY YOU KNOW THE COMMITTEE IS JUST TO ADVISE THE 346 00:39:29.273 --> 00:39:38.297 COURT. I CAN TELL YOU THOUGH THAT GOOGLE THE ALGORITHM THAT GOOGLE USES WILL CHANGE YOU 347 00:39:38.297 --> 00:39:42.666 CAN DO THE SAME SEARCH TEN TIMES AND YOU CAN GET VERY DIFFERENT RESULTS. THEY DO AN INSTANT 348 00:39:42.666 --> 00:39:47.735 AUCTION EVERY TIME A SEARCH IS ENTERED. IT'S YOU KNOW THEY DO MILLIONS OF THEM EVERY 349 00:39:47.735 --> 00:39:53.382 SECOND. AND SO I'M NOT SURE YOU'RE GOING TO GET AN ANSWER OF WHAT -- HOW THEY'RE GOING 350 00:39:53.382 --> 00:39:57.446 TO BE ORDERED EVERY TIME BECAUSE IT'S JUST NOT -- YOU ALMOST HAVE TO ASSUME THAT THERE WILL 351 00:39:57.446 --> 00:40:03.626 BE TIMES WHEN THE ORGANIC SEARCH RESULT WILL BE LOWER THAN THE AD THERE MAY BE TIMES WHEN 352 00:40:03.626 --> 00:40:07.926 IT WILL BE ABOVE THE AD. I'M NOT SURE IF YOUR DECISION YOU KNOW IF YOU'RE GOING TO BE 353 00:40:07.926 --> 00:40:13.898 ABLE TO MAKE A DECISION THAT THAT'S WHAT IT'S GOING TO TURN ON. BUT THE COMMITTEE'S 354 00:40:13.898 --> 00:40:21.496 POSITION WAS THAT YOU KNOW AS LONG AS THE -- IT'S CLEAR THAT THE WEBSITE THAT THE PERSON 355 00:40:21.496 --> 00:40:29.144 GOES TO IS IDENTIFIED WITH THE LAW FIRM THAT YOU KNOW OF THE ADVERTISING ATTORNEY AND 356 00:40:29.144 --> 00:40:36.044 IT WAS CLEAR WHO THAT USER IS NOW AND TO WHAT -- YOU KNOW WHAT WEB DOMAIN THEY ARE NOW 357 00:40:36.044 --> 00:40:42.433 GOING INTO THAT IT WASN'T MISLEADING, IT WASN'T DECEPTIVE AND IT WAS SIMPLY GIVING THE 358 00:40:42.433 --> 00:40:47.740 LOSER ANOTHER CHOICE OF A DIFFERENT LAW FIRM TO EXPLORE IN TERMS OF, YOU KNOW, WHATEVER 359 00:40:47.740 --> 00:40:54.650 THEIR CRITERIA ARE FOR SELECTING A LAW FIRM. SO, YOU KNOW, I MEAN, BUT THE REASON I ANSWERED 360 00:40:54.650 --> 00:41:00.109 THE WAY I STARTED BEFORE WAS JUST TO KIND OF CLARIFY THAT WE'RE NOT TALKING ABOUT LIKE 361 00:41:00.109 --> 00:41:04.818 THE ATTORNEY'S WEB PAGE. NOBODY'S SAYING THAT IF A LAW FIRM HAS AN ACTUAL WEB PAGE THAT 362 00:41:04.818 --> 00:41:12.689 YOU KNOW, LIKE DONNA AR RONS ATTORNEY AT LAW AND I HAVE ALL MY ACCOMPLISHMENTS AND EVERYTHING 363 00:41:12.689 --> 00:41:17.893 ON IT NO ONE'S SAYING THAT THAT WOULD BE WHERE THE AD IS GOING TO APPEAR. IT'S JUST 364 00:41:17.893 --> 00:41:23.390 APPEARING IN THE SEARCH RESULTS. JUSTICE SOLOMON: DID YOU ANSWER THE ORIGINAL 365 00:41:23.390 --> 00:41:29.149 QUESTION MS. AR RONS YOU BECAUSE I AM COMPLETELY UNSOPHISTICATED. IF I PURCHASE JUSTICE 366 00:41:29.149 --> 00:41:34.189 ALBIN'S NAME AND I HAVE AN AD AND IT SAYS JUSTICE ALBIN AD. JUSTICE PATTERSON: 367 00:41:34.189 --> 00:41:37.945 YOU CAN'T AFFORD IT. JUSTICE SOLOMON: I KNOW. I DIDN'T SAY I WAS GOING 368 00:41:37.945 --> 00:41:45.934 TO. I SAID IF. AND SOMEBODY CLICKS ON THE JUSTICE ALBIN AD, ARE THEY GOING TO GO TO 369 00:41:45.934 --> 00:41:56.264 ME? IN OTHER WORDS A LAWYER PURCHASES ANOTHER LAWYER'S NAME OR TRADE NAME, IT'S AN 370 00:41:56.264 --> 00:42:02.143 ADVERTISEMENT, THEY PAY THE MOST THEY CAN, IT'S THE TOP OF THE SEARCH, AND SOMEBODY SEES 371 00:42:02.143 --> 00:42:10.480 THE NAME OF THE LAWYER THEY WANT OR THE TRADE NAME THEY WANT, BUT IT SAYS AD, I'M 372 00:42:10.480 --> 00:42:16.262 UNSOPHISTICATED, I CLICK ON IT, WHERE AM I GOING? AM I GOING TO ME OR AM I GOING TO JUSTICE 373 00:42:16.262 --> 00:42:20.588 ALBIN? I'M GOING TO ME. DONNA ARONS: THAT'S A REALLY GOOD QUESTION BECAUSE 374 00:42:20.588 --> 00:42:27.414 I. JUSTICE SOLOMON: DONNA ARONS: THAT'S A MISCONCEPTION THAT 375 00:42:27.414 --> 00:42:31.743 I WANT TO CLEAR UP. WE'RE TALKING ABOUT THE NAME YOU ENTER INTO THE SEARCH ENGINE. YOU 376 00:42:31.743 --> 00:42:37.851 GET THAT BIG GOOGLE BOX IT SAYS SEARCH OR WHATEVER YOU PUT A NAME IN. THE SEARCH 377 00:42:37.851 --> 00:42:45.843 RESULTS -- IF IT SHOWED UP AS -- TO USE YOUR EXAMPLE IF THE AD THAT JUSTICE SOLOMON PLACED 378 00:42:45.843 --> 00:42:52.941 SAID JUSTICE ALBIN SEARCH THAT A PERSON CLICKING ON IT WOULD THINK THEY'RE GOING TO JUSTICE 379 00:42:52.941 --> 00:43:01.468 ALBIN'S WEBSITE AND GOING TO JUSTICE SOLOMON'S PAGE THAT WOULD VIOLATE THE RULES OF. 380 00:43:01.468 --> 00:43:04.924 JUSTICE SOLOMON: IS THAT HOW IT WORKS. DONNA ARONS: NO THAT'S NOT HOW 381 00:43:04.924 --> 00:43:07.706 IT WORKS. JUSTICE SOLOMON: I WANT TO KNOW HOW IT WORKS. DONNA 382 00:43:07.706 --> 00:43:12.897 ARONS: HOW IT WORKS IS YOU SAY SOMEBODY ENTERS JUSTICE ALBIN'S NAME AS A KEY WORD AN AD 383 00:43:12.897 --> 00:43:19.257 FOR JUSTICE SOLOMON'S PAGE WILL SHOW UP AND IT WILL SAY JUSTICE SOLOMON AD AND SO IF 384 00:43:19.257 --> 00:43:23.138 SOMEBODY SAYS OH, I WAS LOOKING FOR JUSTICE ALBIN BUT I'M ALSO CURIOUS ABOUT JUSTICE SOLOMON, 385 00:43:23.138 --> 00:43:28.279 THEY CAN CLICK ON JUSTICE SOLOMON'S PAGE AND LOOK AT THAT AND IT WOULD LEAD TO YOUR PAGE 386 00:43:28.279 --> 00:43:33.311 BUT IT WOULDN'T LEAD TO -- IT WOULDN'T SAY JUSTICE ALBIN. IF IT SAID JUSTICE ALBIN, I 387 00:43:33.311 --> 00:43:39.436 THINK THAT IS DEFINITELY A VIOLATION OF THE RULES OF PROFESSIONAL -- JUSTICE 388 00:43:39.436 --> 00:43:44.628 SOLOMON: SO PURCHASING HIS NAME AND HAVING IT -- HAVING AN AD APPEAR DOESN'T MEAN THERE 389 00:43:44.628 --> 00:43:49.592 A'S AN AD THAT SAYS JUSTICE ALBIN. DONNA ARONS: CORRECT. JUSTICE 390 00:43:49.592 --> 00:43:52.950 SOLOMON: IT'S AN AD THAT SAYS JUSTICE SOLOMON. DONNA ARONS: CORRECT CORRECT 391 00:43:52.950 --> 00:43:59.584 YES. IF IT SAID JUSTICE ALBIN THAT'S EXACTLY WHAT WE DON'T WANT TO HAPPEN. THAT'S WHY 392 00:43:59.584 --> 00:44:06.330 WE HAVE YOU KNOW RPC 7.1 THAT SAYS YOU HAVE TO BE YOU KNOW YOU CAN'T HAVE A -- CAN'T BE 393 00:44:06.330 --> 00:44:13.454 MISLEADING IN ANY WAY. THAT WOULD BE MISLEADING AND THAT'S ACTUALLY THE EXAMPLE THAT 394 00:44:13.454 --> 00:44:21.305 THE COMMITTEE SAID WAS NOT PERMISSIBLE. SO THAT'S -- YEAH THAT'S NOT WHAT WE'RE TALKING 395 00:44:21.305 --> 00:44:26.444 ABOUT. WHAT WE'RE TALKING ABOUT IS SOMEBODY SUBMITTING -- YOU KNOW PUTTING IN THE SEARCH 396 00:44:26.444 --> 00:44:32.432 BOX PUTTING SAY JUSTICE ALBIN'S NAME IN THERE AND SEEING A BUNCH OF RESULTS AND IT MIGHT 397 00:44:32.432 --> 00:44:38.095 BE LIKE THE SUPREME COURT WEBSITE AND IT MIGHT BE SOMETHING ABOUT GENTLEMAN'S HOME TOWN 398 00:44:38.095 --> 00:44:44.638 AND THEN IT MIGHT BE JUSTICE SOLOMON'S WEBSITE AND IT WOULD ALSO BE IF JUSTICE ALBIN 399 00:44:44.638 --> 00:44:50.760 HAS A WEBSITE IT WILL BE HIS WEBSITE IT WOULD BE RANKED IN SOME KIND OF ORDER DETERMINED 400 00:44:50.760 --> 00:44:55.668 BY THE SEARCH ENGINE THAT HAS TO DO WITH RECALL SEE AND WHAT THEY THINK USERS WILL WANT 401 00:44:55.668 --> 00:45:01.696 WHEN THEY -- WHEN THEY'RE PUTTING IN JUSTICE ALBIN'S NAME. JUSTICE 402 00:45:01.696 --> 00:45:04.730 PIERRE-LOUIS: BUT IT IS OFTEN THE CASE IT MIGHT BE THE CASE THAT JUSTICE SOLOMON'S PAGE 403 00:45:04.730 --> 00:45:10.458 WILL COME UP FIRST BECAUSE IT'S AN ADVERTISEMENT BECAUSE IT'S OFTEN THE CASE THAT THE 404 00:45:10.458 --> 00:45:13.733 ADVERTISEMENTS COME UP FIRST. DONNA ARONS: RIGHT THAT'S DID HE HAVE -- 405 00:45:13.733 --> 00:45:19.234 THAT'S A POSSIBILITY. IT COULD ALSO BE IF THERE WERE A NEWS EVENT ABOUT JUSTICE ALBIN 406 00:45:19.234 --> 00:45:25.593 WHETHER IT WOULD BE ONE HE LIEGD OR DIDN'T LIKE THAT COULD COME UP AT THE VERY TOP ALSO. 407 00:45:25.593 --> 00:45:30.742 OR IF SOMEONE MADE COMMENTS ABOUT HIM AND THAT WAS IN A NEWSPAPER ARTICLE THAT COULD BE 408 00:45:30.742 --> 00:45:35.178 FIRST. YOU HAVE NO CONTROL OVER -- I MEAN I'VE GOOGLED MY OWN NAME AND IT'S NOT REALLY 409 00:45:35.178 --> 00:45:39.013 THE THINGS I WOULD NECESSARILY WANT -- JUSTICE FERNANDEZ-VINA: WE DON'T 410 00:45:39.013 --> 00:45:43.215 KNOW WHAT'S GOING TO COME UP WE DON'T KNOW HOW IT'S GOING TO COME UP WE DON'T KNOW WHOSE 411 00:45:43.215 --> 00:45:49.423 NAME IS GOING TO COME UP FIRST WE ARE NOT SURE HOW IT WORKS BUT WE SHOULD BE ABLE TO TRUST 412 00:45:49.423 --> 00:45:53.197 IT'S NOT GOING TO CAUSE ANY HARM IS THAT PRETTY MUCH THE ARGUMENT. DONNA ARONS: 413 00:45:53.197 --> 00:45:57.292 THE ARGUMENT IS ASSUMING IT'S NOT MISLEADING ASSUMING THAT IT CLEARLY STATES. 414 00:45:57.292 --> 00:46:00.931 JUSTICE FERNANDEZ-VINA: THAT'S MY POINT ASSUMING, ASSUMING, MAYBE, WE DON'T KNOW, IT SHOULD 415 00:46:00.931 --> 00:46:05.828 BE OKAY ISN'T THAT BASICALLY THE THRUST OF YOUR ARGUMENT? DONNA ARONS: 416 00:46:05.828 --> 00:46:12.647 WELL OKAY I MISSPOKE. I DON'T MEAN -- I MEAN YOU HAVE CONTROL OVER WHETHER ATTORNEYS 417 00:46:12.647 --> 00:46:19.207 PUT MISLEADING -- JUSTICE ALBIN: DO WE HAVE THE CHIEF JUSTICE. 418 00:46:19.207 --> 00:46:20.775 JUSTICE FERNANDEZ-VINA: WHAT HAPPENED TO CHIEF. CHIEF JUSTICE RABNER: YES 419 00:46:20.775 --> 00:46:26.216 YOU DO SOMETHING'S HAPPENED TO MY CAMERA BUT I CAN HEAR EVERYTHING. JUSTICE 420 00:46:26.216 --> 00:46:31.034 FERNANDEZ-VINA: AT THE BOTTOM HIT ZOOM MEETING AND YOU WILL COME BACK ON I DID IT TOO. 421 00:46:31.034 --> 00:46:34.976 DONNA ARONS: WHAT I STARTED TO SAY WAS THAT THE COURT AND THE RULES CONTROL 422 00:46:34.976 --> 00:46:41.769 WHETHER ATTORNEYS PUT MISLEADING INFORMATION IN THEIR ADVERTISEMENTS OR ANY OF THEIR 423 00:46:41.769 --> 00:46:48.089 COMMUNICATIONS. THE EXAMPLE THAT JUSTICE SOLOMON GAVE IS AN EXAMPLE OF THAT. SO THAT'S 424 00:46:48.089 --> 00:46:57.697 WHAT I MEAN BY ASSUMING BECAUSE IF AN ATTORNEY DID ACTUALLY PUT IN SOMETHING MISLEADING 425 00:46:57.697 --> 00:47:02.132 LIKE THE WRONG NAME, IT CLEARLY IDENTIFIED THEIR LAW FIRM AS BEING THE LAW FIRM THAT WAS 426 00:47:02.132 --> 00:47:08.651 GOING TO BE -- THAT YOU WERE CLICKING ON OR DIDN'T WHEN YOU CLICKED ON IT DIDN'T TAKE 427 00:47:08.651 --> 00:47:12.202 YOU TO THEIR LAW FIRM'S PAGE I THINK THAT WOULD BE MISLEADING AND THE RULES ALREADY COVER 428 00:47:12.202 --> 00:47:17.881 THAT. BUT -- BUT YES, WE DON'T KNOW WE WILL NEVER KNOW, I DON'T KNOW THAT I CAN DO A 429 00:47:17.881 --> 00:47:24.575 STUDY AND KNOW FOR CERTAIN HOW ALL SEARCHES WILL EVER YOU KNOW HOW THEY WILL BE ORDERED 430 00:47:24.575 --> 00:47:28.157 BECAUSE THAT'S GOING TO CHANGE WITH EVERY SEARCH. SO. JUSTICE PATTERSON: 431 00:47:28.157 --> 00:47:38.061 MS. AR RONS, ONE VT THINGS THAT'S BEING SUGGESTED HERE IS THAT THIS RULE IN OPERATION 432 00:47:38.061 --> 00:47:46.476 COULD ALLOW A WELL-FINANCED LAWYER OR FIRM TO PUT OUT A BUSINESS A MUCH SMALLER FIRM OR 433 00:47:46.476 --> 00:47:53.851 LAWYER WITH FEWER RESOURCES. OBVIOUSLY WE HAVE THOUSANDS AND THOUSANDS OF SOLO PRACTITIONER 434 00:47:53.851 --> 00:47:59.024 PEOPLE WHO ARE IN TWO OR THREE-PERSON FIRMS WHO DON'T HAVE A LOT OF MONEY FOR ADVERTISING, 435 00:47:59.024 --> 00:48:06.689 MATE JUST HAVE A WEBSITE. HOW DO YOU ADDRESS THOSE CONCERNS? I UNDERSTAND THAT WELL 436 00:48:06.689 --> 00:48:15.070 PS FINANCED LAWYERS CAN COME INTO A TOWN AND -- AND JUST BY PURE RESOURCES POTENTIALLY 437 00:48:15.070 --> 00:48:22.143 PUT OUT OF BUSINESS SOLO PRACTITIONER WHO IS PRACTICING IN A PARTICULAR PRACTICE AREA 438 00:48:22.143 --> 00:48:26.852 BUT THIS STRIKES ME AS SOMETHING THAT ALLOWS THAT LAWYER TO DO THAT WITHOUT EVEN REALLY 439 00:48:26.852 --> 00:48:33.983 HAVING A PRESENCE IN THE TOWN AND -- AND ESPECIALLY IF THEY HAVE SOMEBODY WHO'S A NISH 440 00:48:33.983 --> 00:48:38.511 PRACTITIONER TO THE PARTICULAR AREA. HOW DO YOU ADDRESS THAT. DONNA ARONS: 441 00:48:38.511 --> 00:48:44.640 YES I CAN SEE THAT AS A CONCERN. MY UNDERSTANDING IS THAT THIS IS ACTUALLY A 442 00:48:44.640 --> 00:48:50.350 FAIRLY LOW-COST WAY OF ADVERTISING THAT'S ACTUALLY USED THE OPPOSITE WAY FOR PEOPLE TRYING 443 00:48:50.350 --> 00:48:57.815 TO GET STARTED, TO GET A FOOT HOLD IN A COMMUNITY RATHER THAN -- I MEAN FROM THE LITERATURE 444 00:48:57.815 --> 00:49:04.232 I'VE READ ON THE INTERNET, IT SEEMS TO BE MORE BENEFICIAL OR USED MORE BY THOSE TYPES 445 00:49:04.232 --> 00:49:10.475 OF PEOPLE GETTING STARTED OR TRYING TO GET YOU KNOW BUILD A PRACTICE. BUT YEAH I MEAN 446 00:49:10.475 --> 00:49:15.663 I THINK YOU KNOW THAT WOULD BE CONCERNING; I THINK THERE ARE MANY OTHER TOOLS THAT LAW 447 00:49:15.663 --> 00:49:22.635 FIRMS CAN USE. I MEAN ON THE INTERNET NOW, THERE'S VERY LITTLE DISTINCTION BETWEEN ADS 448 00:49:22.635 --> 00:49:30.164 AND CONTENT. IT'S A DIFFERENT WORLD THAN -- I MEAN I -- FROM WHEN I WAS IN -- WHEN I WAS 449 00:49:30.164 --> 00:49:35.724 A YOUNGER PERSON, WHEN YOU LOOKED UP YOU KNOW ON A DREK TOUR TO GET SOMEBODY'S NAME AND 450 00:49:35.724 --> 00:49:41.919 IT WAS ON PAPER AND YOU YOU KNOW THAT'S KIND OF WHERE YOU HAD YOUR INFORMATION OR YOU 451 00:49:41.919 --> 00:49:47.684 WENT TO BOOKS. NOW THE INTERNET IS THIS KIND EVER ENTER ACTIVE YOU KNOW DIE NO, MA'AM 452 00:49:47.684 --> 00:49:53.745 I CAN EXPERIENCE WHERE LAW FIRMS POST BLOGS THAT TALK ABOUT DEVELOPMENTS IN THE LAW THAT 453 00:49:53.745 --> 00:50:01.587 ARE CONTENT BUT ARE ALSO ADS AND THEN ADS ARE WAYS OF INFORMING PEOPLE ABOUT THEIR SERVICE 454 00:50:01.587 --> 00:50:06.780 YOU KNOW ABOUT THINGS THAT THE LAWYERS CAN DO WHICH ARE SORT OF CONTENT. IT'S ALL VERY 455 00:50:06.780 --> 00:50:12.088 KIND OF -- YOU KNOW IT'S VERY DIFFERENT, IT'S A DIFFERENT WORLD. AND I -- SO I THINK 456 00:50:12.088 --> 00:50:19.462 THERE ARE OTHER YOU KNOW WAYS FOR LAW FIRMS YOU KNOW TO USE THE INTERNET BUT I'M -- I'M 457 00:50:19.462 --> 00:50:24.785 IN GOVERNMENT LAW, I HAVE NEVER PUT AN AD ANYWHERE SO I HAVE -- I WOULD BE THE LAST 458 00:50:24.785 --> 00:50:30.880 PERSON TO ASK ABOUT THAT. BUT I -- I CAN UNDERSTAND YOU KNOW THE LEGITIMACY OF THAT 459 00:50:30.880 --> 00:50:37.136 CONCERN. LIKE I SAID THE THINGS THAT I HAVE READ IS IT'S USUALLY AWAY TO INCREASE ACCESS. 460 00:50:37.136 --> 00:50:44.988 JUSTICE LAVECCHIA: MS. AR RONS THE REPRESENTATIVE OF THE U.S.D.A. TAKES 461 00:50:44.988 --> 00:50:50.631 A DIFFERENT POSITION THAN DOES THE A C P.E. ON WHETHER OR NOT THE PURCHASE OF THE AD WORD 462 00:50:50.631 --> 00:50:56.263 IS PART OF THE COMMUNICATION. COULD YOU ADDRESS THAT A LITTLE BIT MORE BECAUSE THE A 463 00:50:56.263 --> 00:51:10.129 C P.E.'S OPINION REALLY HANDLES THAT WITH RATHER SHORT SHIFT. IT SEEMS TO ME IF HE WERE 464 00:51:10.129 --> 00:51:16.395 ABLE TO TAKE A BROADER PERSPECTIVE OF THE PURCHASE OF THIS AD AND THE RESULTS OF HOW IT 465 00:51:16.395 --> 00:51:22.652 IS COMMUNICATED TO THE RECIPIENT THE INTENDED RECIPIENT THEN WE WOULD BE MUCH MORE CLEARLY 466 00:51:22.652 --> 00:51:29.387 IN THE REALM OF 7.1, AND WE KNOW FORUMS FOR COMMUNICATION HAVE CHANGED, WE HAVE 467 00:51:29.387 --> 00:51:36.835 BILLBOARDS NOW FOR ATTORNEYS AND THAT NEVER USED TO BE SO, MANY YEARS AGO; AND YOU JUST 468 00:51:36.835 --> 00:51:43.051 ACKNOWLEDGED THE INTERNET IS A WHOLE DIFFERENT WAY OF INTERACTING WITH THE INTENDED PUBLIC. 469 00:51:43.051 --> 00:51:48.837 COULD YOU ADDRESS THAT, PLEASE. DONNA ARONS: YEAH. I MEAN, THE DECISION 470 00:51:48.837 --> 00:51:55.029 THAT WE HAVE IS FROM THE A C P.E. WHO HAD BEEN REFERRED TO THE COMMITTEE ON ADVERTISING 471 00:51:55.029 --> 00:52:03.428 AND THEY HAD DETERMINED THAT IT WASN'T A COMMUNICATION. YOU KNOW I THINK, YOU KNOW, 472 00:52:03.428 --> 00:52:09.381 THE WAY THAT THE COMMITTEES LOOKED AT IT IS THAT IT HAD TO DO WITH HOW THE AD APPEARED 473 00:52:09.381 --> 00:52:13.140 AND IT WASN'T ABOUT THE CONTENT OF THE AD ITSELF. JUSTICE LAVECCHIA: I KNOW 474 00:52:13.140 --> 00:52:20.435 THEY DREW THE LINE AT CONTENT BUT I'M WONDERING, IS THERE ROOM FOR A MORE EXTENSIVE VIEW 475 00:52:20.435 --> 00:52:24.595 OF THAT. DONNA ARONS: WELL I THINK YOU COULD LOOK AT THE CONTENT, I THINK 476 00:52:24.595 --> 00:52:30.158 YOU SHOULD, I THINK IN EVERY INSTANT THE CONTENT IS IMPORTANT. AND IN FACT AS I WAS 477 00:52:30.158 --> 00:52:34.761 SAYING WITH THE JUSTICE SOLOMON, JUSTICE ALBIN EXAMPLE IF THE CONTENT IS MISLEADING, THEN 478 00:52:34.761 --> 00:52:40.335 WE HAVE RULES THAT COVER THAT AND THEY SHOULD -- THEY SHOULD APPLY. IF IN FACT THERE'S 479 00:52:40.335 --> 00:52:46.007 ANYTHING IN THE AD THAT ISN'T -- THAT MAKES IT CONFUSING OR MISLEADING OR UNCLEAR AS TO 480 00:52:46.007 --> 00:52:53.289 THE LAW FIRM THAT'S PLACING THE AD YOU KNOW THAT -- THAT MAY RAISE A 7.1, YOU KNOW, ISSUE. 481 00:52:53.289 --> 00:52:58.056 BUT THAT'S NOT WHAT WE'RE TALKING ABOUT HERE. WE'RE TALKING ABOUT IT JUST APPEARING ON 482 00:52:58.056 --> 00:53:05.531 THE SEARCH PAGE. AND THAT WAS THE ISSUE. AND IT SEEMED LIKE A LOT OF THE CONCERN ABOUT 483 00:53:05.531 --> 00:53:10.984 THAT -- AND I TOTALLY UNDERSTAND I MEAN THE IDEA OF USING SOMEONE'S NAME AND THAT THE 484 00:53:10.984 --> 00:53:15.483 VALUE OF A NAME AND I THINK IT MAKES ALL OF US FEEL A LITTLE, I DON'T KNOW, UNCOMFORTABLE, 485 00:53:15.483 --> 00:53:24.429 CERTAINLY, WE ALL -- WE ALL UNDERSTAND THAT; BUT I THINK THE FACT OF THE MATTER IS THAT 486 00:53:24.429 --> 00:53:29.540 YOU KNOW THIS IS HOW -- THIS IS WHAT HAPPENS ON THE INTERNET FLT YOU WILL PUT IN A SEARCH 487 00:53:29.540 --> 00:53:34.603 AND YOU WILL GET ALL KINDS OF THINGS THAT YOU DON'T -- YOU DO THE SEARCH FOR. AND THE 488 00:53:34.603 --> 00:53:40.480 FACT THAT A USER MAY CHOOSE TO ENGAGE WITH A DIFFERENT LAW FIRM THAN THE ONE THEY 489 00:53:40.480 --> 00:53:45.687 ORIGINALLY SEARCHED FOR, I DON'T -- YOU KNOW THE COMMITTEE DIDN'T FEEL THAT THAT WAS, YOU 490 00:53:45.687 --> 00:53:50.801 KNOW, MISCONDUCT ON THE PART OF THE ADVERTISING ATTORNEY. AND I THINK -- I THINK, YOU 491 00:53:50.801 --> 00:53:57.918 KNOW, ABSENT SOMETHING TRULY ACTUALLY MISLEADING OR DISHONEST IN THE AD CONTENT, YOU 492 00:53:57.918 --> 00:54:03.102 KNOW, THAT'S WHERE THE COMMITTEE CAME DOWN THAT WE ALREADY HAVE RULES THAT COVER THE CONTENT. 493 00:54:03.102 --> 00:54:07.368 JUSTICE LAVECCHIA: AS I UNDERSTAND YOUR ANSWER, THERE IS GREAT SIGNIFICANCE 494 00:54:07.368 --> 00:54:13.763 PLACED ON THE FACT THAT AN ADDITIONAL CLICK BY THE ULTIMATE USER IS NECESSARY TO GET TO THE 495 00:54:13.763 --> 00:54:18.608 CONTENT, CORRECT. DONNA ARONS: YES. I MEAN THERE'S AN ADDITIONAL CLICK 496 00:54:18.608 --> 00:54:23.761 AND THEY CAN CLICK OUT. YOU KNOW, IN OTHER WORDS IF THERE'S A MISTAKE -- IF I'M LOOKING 497 00:54:23.761 --> 00:54:29.599 FOR SOMEONE TO WRITE MY WILL AND A FRIEND GIVES ME TWO NAMES AND I PUT A NAME IN AND IT 498 00:54:29.599 --> 00:54:36.175 TAKES ME YOU KNOW I HAVE SEVERAL RESULTS AND ONE OF THEM IS AN AD FOR ONE FIRM AND ANOTHER 499 00:54:36.175 --> 00:54:42.493 ONE IS AN AD -- I MEAN IS THE ORGANIC SEARCH FOR THE FIRM THAT I WANT, YOU KNOW, I MIGHT 500 00:54:42.493 --> 00:54:49.162 CLICK THAT AD FOR THE -- I MIGHT CLICK THE AD I MIGHT CLICK IT BY ACCIDENT I MIGHT SEE 501 00:54:49.162 --> 00:54:54.626 THAT -- THEN I WOULD SEE IT'S NOT THE FIRM I WAS INTERESTED IN BUT I MIGHT STILL BE INTERESTED 502 00:54:54.626 --> 00:54:59.738 IN EXPLORING IT BECAUSE I JUST WANT YOU KNOW A WILL AND I JUST WANT IT CHEAPLY AND QUICKLY 503 00:54:59.738 --> 00:55:04.100 AND SO I MIGHT CHECK TO SEE IF YOU KNOW WHAT THEIR SERVICES ARE AND THEN GO BACK TO THE 504 00:55:04.100 --> 00:55:08.619 OTHER ONE AND SEE WHAT THEIR SERVICES ARE, AND THEN MAKE A DECISION. AND THE COMMITTEE 505 00:55:08.619 --> 00:55:14.267 DIDN'T THINK THAT THAT SORT OF PROCESS WOULD BE -- WOULD VIOLATE ANY RULES. 506 00:55:14.267 --> 00:55:17.267 CHIEF JUSTICE RABNER: JUSTICES ARE THERE MORE QUESTIONS