Ethical Considerations for Pennsylvania Attorneys Using Covert Advertising on Social Networking Sites
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Ethical Considerations for Pennsylvania Attorneys Using Covert Advertising on Social Networking Sites

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Compared to Florida, the Pennsylvania Bar appears to have taken a laissez-faire approach when considering the issue of online advertising. Pennsylvania simply has not addressed issues such as the ...

Compared to Florida, the Pennsylvania Bar appears to have taken a laissez-faire approach when considering the issue of online advertising. Pennsylvania simply has not addressed issues such as the implications and ethical considerations of article marketing and covert social network advertising on websites like, Facebook, Twitter, LinkedIn, and YouTube – which many young and tech-savvy attorneys have been using to their lucrative advantage. This article will offer a cursory explanation of potential ethical considerations in regards to covert advertising using new media and the competitive advantage young tech-savvy attorneys have over their older and less informed counterparts by using these following techniques, which could be – but have not yet been – deemed unethical.

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Ethical Considerations for Pennsylvania Attorneys Using Covert Advertising on Social Networking Sites Ethical Considerations for Pennsylvania Attorneys Using Covert Advertising on Social Networking Sites Document Transcript

  • Ethical Considerations for Pennsylvania Attorneys Using Covert Advertising on Social Networking Sites By: Drew Gray Miller, Esq.Introduction Most law schools still advise students not to join social networking sites like Facebookbecause employers have been using these sites to try and find unflattering or incriminatingevidence on potential employees, which could prevent law students from starting or advancing intheir careers. However, a lack of an online presence is just as detrimental. In the movie, TheSocial Network, Napster founder, Sean Parker, quipped to Facebook Cofounder EduardoSaverin: “I also did a search on you and you know what I found? Nothing.” In the InformationEra, it is important to market yourself via the internet. According to a June 2010 survey byDigital Brand Expressions, 75 percent of hiring managers use LinkedIn on a regular basis toresearch candidates before making an offer, 48 percent use Facebook, and 26 percent useTwitter. An earlier survey by CareerBuiler revealed that online screening of a potentialemployee could substantially help or hurt that candidate. Reasons employers listed for notgranting an interview after viewing an online profile included the candidates: lying aboutqualifications, showing poor communication skills, making discriminatory comments andposting inappropriate photographs or content about them drinking or using drugs. However,employers hired candidates whose profiles: supported their professional qualifications, reflectedstrong communication skills and showed that they were well-rounded and presented aprofessional image. This illustrates two points: 1. You need to use social networking sites and 2.It must be professional. The internet has provided young lawyers an effective and low-cost way to marketthemselves. In fact, tech-savvy attorneys have been using social networking websites likeFacebook, Twitter, LinkedIn and YouTube to their lucrative advantage. This article will offer acursory explanation of how to utilize social networks to create your personal brand, while alsoaddressing potential ethical considerations that may arise.Covert Advertising The comedian Stephen Wright once said, “Ninety-nine percent of lawyers give the rest abad name.” Like it or not, we are members of the most reviled profession in America.Commercials that begin, “Have you been hurt in an accident?” are most certainly causing societyto view attorneys as ambulance chasers and this type of advertising is ruining the dignity of ourprofession. Now, with the advent of online social networks, a new type of advertising hasemerged that could be even more devastating to the legal profession than traditional advertisingbecause it is not as heavily regulated and has the potential to mislead many consumers. Covert advertising has traditionally been seen as a type of subliminal advertisingoccurring as product placement within visual media such as movies or television. It is a way toadvertise without appearing to “sell” the consumer on a particular product. Recently, covertadvertising has morphed into inexpensive and effective direct marketing through online social
  • networking sites in the form of Facebook pages, Twitter updates, LinkedIn recommendations andYouTube videos. In fact, Old Spice recently used YouTube and Twitter to conduct a massivesocial media ad campaign that went on to become one of the most successful in history. Socialmedia marketing is starting to catch on and this new phenomenon has left bar associationsasking: “Is this advertising – and if so, is it ethical?”Ethics in Legal Advertising: Pennsylvania vs. Florida The Pennsylvania and Florida Bars have both addressed the issue of attorney advertising,but each has come to different conclusions in regards to what is considered unethical. The legal profession has always had concerns about attorney advertising. In fact, in2006, Pennsylvania Bar Association President Kenneth Horoho, said in his inaugural speech tothe House of Delegates that “some of the advertising being conducted by lawyers throughout ourstate is hurting the profession and affecting the public’s perception of us.” To address thisproblem, he created the Task Force on Lawyer Advertising in order to make recommendations tothe Supreme Court of Pennsylvania. The report was finished in May of 2007 and addressedseveral topics including, “misleading and deceptive websites” and “comparative and superlativeadvertising.” Unfortunately, the Task Force noted that some of the rules concerning advertisingwere inadequate: “Pennsylvania’s Rule of Professional Conduct 7.1 (CommunicationsConcerning a Lawyer’s Service), may have been rendered too vague and fails to providemeaningful guidance beyond the fundamental prohibition against false or misleadingadvertising.” The Task Force also implied that testimonials from a former client were acceptableas long as they do not involve matters still pending. In addition, the Task Force warned against“comparative” or “superlative” advertising, which usually “consists of ratings and quasi-awards”from peer review publications such as The Best Lawyers in America and Super Lawyers; butconcluded by saying that such comparative advertising is acceptable as long as it is not“contingent, in whole or in part, upon financial contributions or other illegitimate means.” The Florida Bar was one of the first to recognize the ethical concerns regarding the use ofsocial networking sites to advertise. In 2009, the Florida Bar petitioned the Florida SupremeCourt to consider the issue of attorney websites as they relate to advertising. The Courtaddressed the issue in its recent decision, In Re: Amendments to the Rules Regulating the FloridaBar – Rule 4-7.6, Computer Accessed Communications, 34 Fla. L. Weekly S627 (Fla. Nov. 19,2009), Case No. SC08-1181. One issue over which the Florida Supreme Court expressedconcern was the topic of testimonials on a website. Unlike Pennsylvania, the Florida Barconsiders testimonials by former clients to be a violation of Rule 4-7.2(c)(1)(J) of their Rules ofProfessional Conduct. The comment to this particular provision states that endorsements ortestimonials are prohibited, “whether from clients or anyone else, because they are inherentlymisleading to a person untrained in the law. Potential clients are likely to infer from thetestimonial that the lawyer will reach similar results in future cases. Because the lawyer cannotdirectly make this assertion, the lawyer is not permitted to indirectly make that assertion throughthe use of testimonials.” Interestingly, the Florida Supreme Court still had questions concerning“testimonials” and in a letter dated November 19, 2009 to Jack Harkness, the Executive Directorof The Florida Bar, it asked that The Florida Bar “study and define the term ‘testimonial’[because] …the Bar recently informed the Court at oral argument that the term is undefined.”
  • In response to this case, the Florida Bar’s Standing Committee on Advertising approvedguidelines for: 1. Social networking sites 2. Video sharing sites and 3. Lawyer and Law FirmWebsites. It concluded that “pages of individual lawyers on social networking sites that are usedsolely for social purposes, to maintain social contact with family and close friends, are notsubject to the lawyer advertising rules.” The Committee went on to note that “pages appearingon networking sites that are used to promote the lawyer or law firm’s practice are subject to thelawyer advertising rules.” Thus, Florida lawyers cannot post on websites or social networkingsites information such as, “references to past results, promises of results, testimonials, statementscharacterizing the quality of legal services, and visual or verbal portrayals that are false,misleading, manipulative, or confusing.” For the past eight years, the Committee has beenpublishing an annual comprehensive (102 page) manual titled, “Handbook on LawyerAdvertising and Solicitation” to help guide attorneys. Pennsylvania has not yet addressed these issues. Therefore, Pennsylvania law firms thatdeal with class action cases involving people from multiple states – such asAsbestos/Mesothelioma suits – could obtain a competitive edge over similarly situated Floridafirms that are also vying to represent these plaintiffs. Faced with the fact that Florida law firmswill now be banned from referring to past results, using testimonials, or characterizing thequality of their legal services on their websites, eight prominent Florida law firms have protestedthe Florida Supreme Court’s proposed rules for web advertising in a 66 page comment that wasrecently submitted to the Court. Compared to Florida, the Pennsylvania Bar appears to have taken a laissez-faire approachwhen considering the issue of online advertising. Pennsylvania simply has not addressed issuessuch as the implications and ethical considerations of article marketing and covert advertising onsocial networking sites like, Facebook, Twitter, LinkedIn, and YouTube – which many youngand tech-savvy attorneys have been using to their lucrative advantage.Article Marketing Many people use Google to search for attorneys near them. The people who do this tendto perceive the first several websites returned in a Google search as the best, the mosttrustworthy, etc. If your web page were the first result in a search for “the best real estateattorney in Pittsburgh”, you would be perceived as such. Let’s say your name is Stefano Chiado and you are a relatively unknown PittsburghAttorney who wants to become recognized as the best real estate attorney in Pittsburgh. Well,for approximately $1,000, it is possible to convince the entire world you are, in fact, the best realestate attorney in Pittsburgh – even though you have absolutely no experience in real estate. Theway you would accomplish this is through article marketing. Article marketing is a relatively new technique whereby a group of writers are hired byan article marketing company to write several articles and blogs about its client and are given theparameters that certain keywords must be used several times in the articles. These articles arethen distributed to many different websites where web crawlers see the keywords and link them
  • to the website listed in the article. This is similar to the “Miserable Failure” Google Bomb of2003, where a numerous amount of people plotted to link the term “miserable failure” to theWhite House biography of then President George W. Bush, so that when people typed“miserable failure” into a Google search, the first result was the Whitehouse biography ofPresident Bush. Therefore, going back to the previous example, if Stefano Chiado has several articleswritten about him being the “best real estate attorney in Pittsburgh” and that people should visithis website, ChiadoLawFirm.com, for more information, then ChiadoLawFirm.com couldbecome the first result in a Google search for: “best real estate attorney in Pittsburgh” – eventhough Stefano Chiado knows almost nothing about real estate law. In addition, if a Google search of your name yields unflattering evidence, articlemarketing will help you burry such unwanted material. For example, if a former client writes ablog titled, “Stefano Chiado is the worst attorney in Pittsburgh” and proceeds to write aboutStefano’s terrible representation, a search for “Stefano Chiado” could potentially return a link tothat blog. Article marketing would not only create positive articles about Stefano Chiado thatpeople could read, but it would also push the former client’s blog several pages deep in Google’ssearch results and would probably never be seen by any potential clients. Is it unethical to utilize article marketing in order to push your web page to the top resultof a Google search? As of now, bar associations have remained silent on that issue. Anargument could be made from the prior example that since the phrase “the best real estateattorney in Pittsburgh” was not actually used on Stefano Chiado’s website, he was not making amisrepresentation. Conversely, a counter argument could be made that he took intentional stepsto try and convince people that he was the best real estate attorney in Pittsburgh, knowing allalong that he was not, which could potentially become a violation of Rule 1.1 of the PA Rules ofProfessional Conduct, dealing with competence. One fact, however, remains certain: articlemarketing provides an inexpensive and effective way of getting traffic to your website bymaking it the top result in a keyword search.Facebook Facebook is the world’s largest social networking website. It has now become a greatway for businesses – and law firms – to reach out to clients. Nearly every major corporation,politician and celebrity has a Facebook Page where anyone in the world can visit it and become afan by “liking” it. When a person “likes” a page, this activity is broadcasted in the news feed ofeach of the person’s friends, who could decide to also become a fan. It has become an excellentmarketing tool. In fact, when a California manufacturer of ski gear recently developed aFacebook Page, its e-commerce went from $0 to $25,000 in just three months. The owner of a Facebook page has the ability to remove content, so even if a fan doeshave the ability to post comments, it is possible the owner could choose to display only positivefeedback. If an attorney posts a comment on his or her Facebook page every time that attorneywon a court case, it would appear as if the attorney never loses a case. Facebook pages alsoshow up in Google searches. Therefore, a potential client could click on an attorney’s Facebook
  • page and see, for example, that an attorney has over 1,000 people who “liked” the page and thatthis attorney apparently has a track record of winning cases. In addition, there are nowbusinesses who advertise that for a small fee, they will get 1,000 fans for your Facebook page.Interestingly, this is probably seen as “unethical” in Florida, but good business sense inPennsylvania.LinkedIn LinkedIn is a career-oriented site that allows users to build professional networks andeven search for job openings. One important feature of the site allows people in a network to“recommend” a user or user’s professional services. Since it is rare that people will go out oftheir way to give an unsolicited recommendation, LinkedIn allows the user to request arecommendation from people in his or her network. In fact, LinkedIn won’t consider a profile“complete” until that person has received recommendations. LinkedIn is great for young professionals who do not have a personal website since aperson’s LinkedIn page is usually displayed on the first page of Google when someone does asearch for that person. Included in the “basics” section of a profile is how manyrecommendations a person has received. Thus, it is completely possible that a potential client,researching various attorneys, could infer that one attorney is more qualified than anotherbecause more people have “recommended” one attorney’s services than another on LinkedIn.The question then becomes: are these (usually solicited) recommendations “testimonials”?Neither the Florida Bar nor the Pennsylvania Bar has directly addressed this question. As theknowledge and popularity of LinkedIn increases over the coming years, this issue should beaddressed by the state bar associations. Until that happens, however, the recommendationfeature of LinkedIn offers young attorneys one of the easiest ways to appear more qualified thanan older counterpart.YouTube YouTube offers its users the ability to create a profile showing the world what videos thatuser has uploaded. If done correctly, YouTube could be the most cost-effective way todisseminate information in a video format. In fact, many companies are starting to reap thebenefits of using social networking sites to covertly advertise. A recent example was theingenious social media campaign from Old Spice that ran during this past July on YouTube. Inthe videos, the Old Spice Man would answer live questions from people contacting him viaTwitter. The 150+ videos promoting Old Spice immediately went viral and are still being sharedto this day. It has since become one of the most successful social media advertising campaignsin history. Attorneys who are already familiar with traditional and expensive television advertisinghave also made the crossover to the free and effective YouTube. In fact, Pittsburgh’s own EdgarSnyder – the successful and ubiquitous personal injury attorney (and Vice Chair of thePennsylvania Bar Association’s Task Force on Lawyer Advertising) – currently hasapproximately 210 commercial videos on his channel.
  • Although YouTube provides a unique way for attorneys to market their abilities, it alsoprovides an opportunity for attorneys to inadvertently circumvent the Rules of ProfessionalConduct in regards to advertising. Video blogging is the newest way for people to communicatetheir ideas or talents to the world. At what point does bragging about your accomplishmentsbecome a form of advertising? Is it ethical for an attorney to create a video blog talking about his recent successful courtcase that caused his client to win a million dollars and retire young? This may sound farfetched,but law firms are already doing this. The New York law firm, Frekhtman & Associates, has one YouTube video with almost12,000 views. The video begins with the attorney saying: Our law firm has received some of the top record-setting verdicts in the history of New York State. We received a verdict of $69,225,000.00 in a car accident case, a few years later, we received a $30 million verdict in a medical malpractice case. We have our verdicts and settlements link right on our homepage and you can take a look at some of the cases that we’ve been involved in and some of the results that we’ve achieved. In the comments section below the video, the highest-rated came from jimwilson8: “Itcould be a traumatic experience for anyone who has suffered personal injury…Frekhtman andAssociates outstanding track record speaks for itself…and they provide legal consultation free ofcost.” Could “jimwilson8” be a made-up user name by the law firm disguised to look like aformer client? Is this considered a testimonial? Is this considered advertising? Are tactics likethis unethical? The bars of each state may be forced to address this issue in the near future.The Implications To illustrate how the internet and social networking sites could give young Pennsylvaniaattorneys a competitive edge, assume Stefano Chiado (from the earlier example) created aprofessional-looking website: ChiadoLawFirm.com. He hires an article marketing company forunder $1,000 to write articles and blogs about him being the best real estate attorney inPittsburgh, when in reality he knows very little about real estate and is far from being an expert.After joining LinkedIn, he solicits ten of his close friends to recommend him, and they do.Stefano creates a Facebook page dedicated to the Chiado Law Firm, talking about his recentlegal accomplishments and acquires 2,000 fans. During his free time, he works to createYouTube video blogs talking about his success in court. Assume further that a homebuilder, specializing in single-family homes, decides to nowdevelop commercial real estate and determines he needs an exceptional real estate attorney. Thehomebuilder goes to Google and does a search for: “best real estate attorney in Pittsburgh”. Thissearch would return ChiadoLawFirm.com as the first suggestion. The homebuilder then clickson the website and learns about Stefano Chiado while viewing a number of positive testimonialsfrom past clients. If the homebuilder went back to Google and typed: “Stefano Chiado” into thesearch engine, it would produce results for his law firm’s Facebook page of 2,000 fans and
  • numerous testimonials, a LinkedIn page showing that 10 people in the profession recommendhim, numerous blogs and articles all touting Stefano’s expertise, and a YouTube channel whereStefano has kept several video blogs describing his legal accomplishments. Stefano Chiado’shard work of utilizing social networks has caused him to acquire a wealthy new client.Unfortunately for the homebuilder, Stefano Chiado is not – as he thought – the best real estateattorney in Pittsburgh. It is somewhat interesting that some of the aforementioned tactics in this article wouldmost likely be deemed unethical in Florida, but good business sense in Pennsylvania. Utilizingsocial networks in order to advertise your legal skills is an issue the Pennsylvania Bar will mostlikely have to address in the near future in order to determine whether such actions are ethical.While it is impossible to say with any great certainty whether these techniques are trulyunethical, one fact remains true: using social networks to covertly advertise legal services is aninexpensive and effective way for young Pennsylvania lawyers to have a competitive edge overtheir older counterparts. About the Author Mr. Drew Gray Miller is an attorney licensed to practice law in Pennsylvania, Florida and the District of Columbia. He received a B.S. in Broadcast Journalism from the prestigious S.I. Newhouse School of Public Communications at Syracuse University and a J.D. from the Widener University School of Law in Harrisburg. In addition, he is a former Realtor who also gained nearly a decade of real estate experience working for his family’s construction company. Mr. Miller is currently employed as Legal Counsel for the Senate of Pennsylvania and volunteers pro bono as a Director for Community Human Services, which helps the homeless population of Allegheny County. He is the former Vice President of theAutism Help Network and a former Field Instructor for the University of Pittsburgh’s School ofSocial Work.