WEBVTT

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THAT ANY REGULATION OF ATTORNEY ADVERTISING MUST
TAKE INTO ACCOUNT THE PROTECTIONS OF 

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THE FIRST AMENDMENT.  ON THE OTHER HAND, A
MISLEADING ADVERTISEMENT IS NOT ENTITLED TO

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FIRST AMENDMENT PROTECTIONS.  AND SO I'D LIKE TO
CONTRAST A MISLEADING AD WITH AN AD THAT IS

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NOT MISLEADING BUT THAT THE COURT MAY WISH TO
REGULATE FOR ANOTHER REASON.  SO FOR EXAMPLE,

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IF THE COURT MREEFS THAT A PARTICULAR TYPE OF
ADVERTISEMENT IS UNFAIR BECAUSE IT, FOR

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EXAMPLE, EXCUSE ME, IT PUSHES ANOTHER ATTORNEY IN
THE SEARCH RESULTS LOWER DOWN, ASSUMING

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THAT'S NOT MISLEADING OR UNFAIR THE COURT MAY
WISH TO REGULATE THAT AND TO DO SO IT MUST

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DO SO CONSISTENT WITH THE FIRST AMENT WHICH GETS
INVOLVED WITH THE SUPREME COURT BOUNDARY

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TEST FOR THE REGULATION FOR NONMISLEADING
ATTORNEY ADVERTISING.  SO WE NEED TO PARMD

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THAT THE RULES FOR ATTORNEY ADVERTISING THAT ARE
MISLEADING ARE DIFFERENT THAN THE RULES

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REGULATING NONMISS HE LEADING ADVERTISING.  THE
CONCERN I HAVE WITH A FINDING ABOUT KEY

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WORD SEARCH ADVERTISING, IF THERE WERE TO BE A
FINDING THAT KEY WORD SEARCH ADVERTISING

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IS ITSELF MISLEADING THE CONCERN IS THAT IT WOULD
APPLY NOT ONLY TO LAWYERS BUT TO EVERYONE

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ELSE WHO'S USING A SIMILAR TYPE OF ADVERTISING. 
SO SUPPOSE I OPEN A NEW HARDWARE STORE

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IN TOWN AND I PURCHASE A KEY WORD SEARCH USING
THE NAME OF HOME DEPOT SO THAT IF SOMEONE

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SEARCHES FOR HOME DEPOT THEY'RE AWARE OH, MR.
STONE HAS OPENED A KNEW HARDWARE STORE IN

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TOWN MAYBE I'LL TRY THAT TOO.  BUT IF THAT KEY
WORD SEARCH WHICH CAUSES MY NAME TO COME

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UP IN AN AD ABOVE HOME DEPOT, IF THAT'S DEEMED TO
BE MISLEADING, IF THAT'S FRAUDULENT,

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THEN ISN'T THERE A RISK THAT HOME DEPOT IS NOW
GOING TO SUE ME FOR FRAUD UNDER NEW JERSEY

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LAW?  AND THAT'S A REALLY DANGEROUS IDEA BECAUSE
THAT HAS THE POTENTIAL TO UP END ALL

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INTERNET ADVERTISING WHICH IS TO SAY ALL INTERNET
SEARCHES WHICH DEPEND ON THAT MODALITY

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AND I AM CONCERNED ABOUT --              JUSTICE
ALBIN:  ATTORNEYS ARE NOT HARDWARE VENDORS.

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SO NEW JERSEY SUPREME COURT HAS THE
CONSTITUTIONAL AUTHORITY TO REGULATE THE

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PRACTICE OF LAW AND I DON'T KNOW THAT THIS IS THE
CASE BUT IF ONE ATTORNEY'S PURCHASING

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ANOTHER ATTORNEY'S NAME AND THEREFORE,
DISADVANTAGING THAT PERSON DURING THE SEARCH

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PROCESS, WHY WOULDN'T THAT BE OF CONCERN TO US?   
SHALOM D. STONE:  IT CERTAINLY

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COULD BE OF CONCERN IF IT'S DISADVANTAGING
ANOTHER LAWYER BUT I'M MAKING A DISTINCTION

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BETWEEN AN ADVERTISEMENT THAT THE COURT WANTS TO
REGULATE BECAUSE IT BELIEVES THAT IT

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DISADVANTAGES ANOTHER LAWYER AND THE
ADVERTISEMENT THAT THE COURT FOUND TO BE

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MISLEADING.  I AM ADDRESSING ONLY MISLEADING
COMPONENT IF THE COURT WOULD FIND AN AD IS

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MISLEADING I AM NOT SUGGESTING THAT LAWYERS ARE
LIKE HARDWARE STORES OF COURSE THE COURT

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HAS A SUPERINTENDENT TO ATTORNEYS.  IF
ADVERTISEMENT IS FRAUDULENT THEN YOU

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POTENTIALLY OPEN A PANDORA'S BOX TO EVERYONE
CLAIMING THAT A KEY WORD SEARCH IS FRAUDULENT

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BECAUSE I DON'T KNOW HOW THE COURT OR COMMITTEE
COULD THEORETICALLY SAY A KEY WORD SEARCH

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IS FRAUDULENT AS BETWEEN TWO LAWYERS BUT IT'S NOT
FRAUDULENT AS BETWEEN TWO HARDWARE STORES. 

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I DON'T KNOW HOW YOU MAKE THAT DISTINCTION.  I
ALSO WANTED TO MAKE A DISTINCTION BETWEEN

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RPC 7.1 AND RPC 8.4.  ABDOMINAL WE ALL KNOW
ATTORNEY ADVERTISING IS REGULATED BY RULES

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INCLUDING RPC 7.1, RPC 7.2 THERE WERE ALSO 3
ATTORNEY ADVERTISING GUIDELINES THAT WERE

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APPROVED BY THIS COURT BUT RULE 7.1 A PERMITS
FAULT OR MISLEADING COMMUNICATION CONCERNING

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A LAWYER OR LAWYER SERVICES THAT WOULD SEEM TO
MAKE 7.1 A AN IMPORTANT FACTOR IN THE

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QUESTION BEFORE THE COURT TODAY.  BUT OPINION 735
IS EXPRESSLY LIMITED TO 8.4 ANDED ADDITIONS

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VICE RI COMMITTEE HELD UNDER RULE 8.4 ATTORNEY
KEY ADVERTISING DOES NOT INVOLVE FRAUD

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DECEIT OR MISREPRESENTATION AND NOT CONTRADICTION
AL TO THE ADMINISTRATION OF JUSTICE. 

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7.1 SAYS IT'S ONLY REFERENCE COMMITTEE ON
ATTORNEY ADVERTISING 7.1 DOES NOT COVER THE

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PURCHASE OF A KEY WORD SEARCH BECAUSE THAT
PURCHASE IS NOT A COMMUNICATION.  THAT IS FAR

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TOO NARROW.  ATTORNEY ADVERTISING IS A
COMMUNICATION AND THE AD CANNOT BE DIVORCED

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FROM THE PURCHASE OF THE KEY WORD THAT GENERATES
THE AD.  NOW, GIVEN THE SPARSENESS OF THE

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RECORD, THE INSTITUTE TAKES NO POSITION ON THE
QUESTION OF WHAT A KEY WORD SEARCH

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ADVERTISING IS DECEPTIVE OR MISLEADING BUT IF IT
IS MISLEADING THEN PERHAPS RULE 7.1 A

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SHOULD BE IN PLAY.  THE INSTITUTE THEREFORE,
AGREES THAT OPINION 735 SHOULD BE REFERRED

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TO THE APPROPRIATE COMMITTEE TO DEVELOP A MORE
DETAILED FACTUAL RECORD AND TO REVISIT

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THE DETERMINATION THAT RULE 7.1 A IS
INAPPLICABLE.              JUSTICE PATTERSON:

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ARE YOU SAYING THAT MR. STONE BECAUSE 7.1 A
APPLIES ONLY TO ATTORNEYS AND THAT WOULD

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THEREFORE, NARROW OR ELIMINATE ANY QUESTION THAT A
RULING BY THIS COURT ULTIMATELY EXPANDS

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OUTSIDE OF THE REALM OF ATTORNEYS?              
SHALOM D. STONE:  NO.  I STILL BELIEVE

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THAT THERE IS A CONCERN ABOUT DESCRIBING KEY WORD
SEARCH ADVERTISING AS MISLEADING OR

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FRAUDULENT; MY POINT IS SIMPLY IF THERE WERE
WHICH WE'RE NOT TAKING A POSITION IF IT WERE

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FOUND TO BE MISLEADING PERHAPS THE MORE
APPROPRIATE WAY OF TACKLING THE PROBLEM IS

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THROUGH 7.1A RATHER THAN THROUGH 8.4 WHICH IS A
MORE OPEN-ENDED AND HAS A DIFFERENT STANDARD.

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JUSTICE PATTERSON:  THAT'S WHAT I WAS
I THINK SUGGESTING IS IT'S PERHAPS A

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NARROWER WAY TO GO AT THE QUESTION THAT MIGHT NOT
HAVE AS MANY UNINTENDED CONSEQUENCES

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IS THAT THE POINT YOU'RE MAKING.             
SHALOM D. STONE:  YES, YOUR HONOR.           

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CHIEF JUSTICE RABNER:  MR. STONE IF WE WERE TO
SEEK TO DEVELOP A FULLER RECORD AS YOU

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AND OTHERS HAVE SUGGESTED TAKE A STAB AT WHAT THE
CHARGE OF THAT COMMITTEE SHOULD BE WHAT

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SPECIFICALLY SHOULD WE ASK THEM TO DO?           
SHALOM D. STONE:  SO I THINK IT'S

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BECOME OBVIOUS TODAY THAT THE OPINION 735 HAS A
LOT OF MAYBES IN IT.  THERE'S A LOT OF

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PROBABLY, USUALLY, HOW KEY WORD SEARCH
ADVERTISING LAYS OUT, HOW IT APPEARS, IS IT

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CONSISTENT ACROSS DIFFERENT SEARCH ENGINES, IS IT
CONSISTENT ACROSS DIFFERENT DEVICES AND

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I THINK THE COMMITTEE WOULD NEED TO LOOK AT AND
CREATE A RECORD AT THOSE ISSUES.  BECAUSE

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WE DON'T REALLY HAVE A CLEAR RECORD FROM THE
OPINION 735 ON HOW THAT WORKS.  THERE'S 

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ALSO BEEN REFERENCE TO A LOT OF MY COLLEAGUES
TODAY AND SOME OF THE JUSTICES HAVE REFERRED

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TO OTHER ASPECTS AND OTHER THINGS THAT ARE NOT
PART OF THE RECORD AND WE DON'T -- THE

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SPECIFICS ARE NOT MY POINT.  MY POINT IS WE'VE
ALL TRIED TO FILL IN THE GAPS IN EACH OTHER'S

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UNDERSTANDING OF HOW KEY WORD SEARCH ADVERTISING
WORKS BY REFERENCING SOME OF OUR OWN

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OBSERVATIONS AND OUR OWN RESEARCH ON THE INTERNET
WHICH ISN'T REALLY PART OF WHAT THE

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COMMITTEE WAS LOOKING AT OR AT LEAST NOT PART OF
WHAT'S IN THE OPINION.         I ALSO

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WANTED TO DRAW A DISTINCTION BETWEEN THE POINT I
WAS MAKING EARLIER ABOUT KEY WORD SEARCH

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ADVERTISING THAT THE COURT MAY WISH TO REGULATE
NOT BECAUSE IT'S MISLEADING BUT BECAUSE

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IT CREATES OTHER CONCERNS THAT MAY OR MAY NOT
SATISFY THE BALANCING TEST FOR THE REGULATION

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OF COMMERCIAL ADVERTISING AND ON THE OTHER HAND A
MISLEADING OR FRAUDULENT ADVERTISEMENT.

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AND IN THAT REGARD, I REFER THE COURT TO THE
EXAMPLE THAT I GAVE IN MY SUBMISSION TO THE

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COURT, WHICH IS, THE FEDERAL TRADE COMMISSION'S
CONCERN ABOUT ATTORNEY ADVERTISING THAT IS

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DIRECTED TO CONSUMERS AND COULD IN THE FCC'S
WORDS COULD LEAVE CONSUMERS WITH THE FALSE

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IMPRESSION THAT THEIR PRESCRIPTION DRUGS MAY BE
CAUSING THEM HARM THAT OUTWEIGH THE BENEFITS

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OF TAKING THEM.  SO THAT KIND OF MISLEADING
ADVERTISING WHICH ACCORDING THE TO THE FCC

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SATISFIES THE STANDARD OF MISLEADING ATTORNEY
ADVERTISEMENT AND THE CEASE AND DESIST

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LETTERS THE ATTORNEYS ADVERTISING THAT MISLEAD
CONSUMERS WHETHER IT'S ABOUT PHARMACEUTICAL

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DRUGS OR MEDICAL DEVICES OR ANY OTHER MISLEADING
ADS THOSE ARE NOT PROTECTED BY THE FIRST

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AMENDMENT BECAUSE THEY ARE MISLEADING AND THOSE
SHOULD BE PROHIBITED CHL        I JUST

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WANTED TO MAKE ONE LAST POINT TO HELP RESPOND TO
JUSTICE SOLOMON'S QUESTION EARLIER ABOUT

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HOW THESE LINKS WORK.  AND I BELIEVE JUSTICE
SOLOMON WAS ASKING IF -- IF YOU PURCHASE

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AN ADVERTISEMENT WITH JUSTICE ALBIN'S NAME AND
YOU CLICK ON IT, DOES THAT LEAD TO OR JUSTICE

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SOLOMON'S NAME DOES THAT LEAD TO JUSTICE ALBIN? 
THE IDEA OF CLICKING ON ONE ATTORNEY'S

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NAME AND LEADING TO A DIFFERENT SITE WAS
ADDRESSED BY THE COMMITTEE.  IT'S A VERY

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SHORT DISCUSSION, IT'S ON THE FIRST FULL PARAGRAPH
OF PAGE 4 OF THE OPINION.  IT DESCRIBES

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THOSE HYPER LINKS THAT WOULD LEAD YOU TO SOMEONE
ELSE'S SITE.  THE COMMITTEE CONCLUDES

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THAT THAT IS DECEITFUL CONDUCT THAT VIOLATES 8.4
C AND TO THE BEST OF MY KNOWLEDGE NONE

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OF THE SUBMISSIONS THAT WERE MADE TO THIS COURT
CHALLENGE THAT FINDING.  AND SO I -- 

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NOBODY'S TAKEN THE POSITION ON IT BUT THAT
COMMITTEE'S FINDING THAT THAT SORT OF HYPER

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LINK THAT ONE NAME LEADING TO ANOTHER THAT SEEMS
TO LEAVE WITHOUT QUESTION              CHIEF

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JUSTICE RABNER:  THANK YOU TO ALL COUNSEL