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.

1. 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 Facebook
because employers have been using these sites to try and find unflattering or incriminating
evidence on potential employees, which could prevent law students from starting or advancing in
their careers. However, a lack of an online presence is just as detrimental. In the movie, The
Social Network, Napster founder, Sean Parker, quipped to Facebook Cofounder Eduardo
Saverin: “I also did a search on you and you know what I found? Nothing.” In the Information
Era, it is important to market yourself via the internet. According to a June 2010 survey by
Digital Brand Expressions, 75 percent of hiring managers use LinkedIn on a regular basis to
research candidates before making an offer, 48 percent use Facebook, and 26 percent use
Twitter. An earlier survey by CareerBuiler revealed that online screening of a potential
employee could substantially help or hurt that candidate. Reasons employers listed for not
granting an interview after viewing an online profile included the candidates: lying about
qualifications, showing poor communication skills, making discriminatory comments and
posting inappropriate photographs or content about them drinking or using drugs. However,
employers hired candidates whose profiles: supported their professional qualifications, reflected
strong communication skills and showed that they were well-rounded and presented a
professional 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 market
themselves. In fact, tech-savvy attorneys have been using social networking websites like
Facebook, Twitter, LinkedIn and YouTube to their lucrative advantage. This article will offer a
cursory explanation of how to utilize social networks to create your personal brand, while also
addressing potential ethical considerations that may arise.
Covert Advertising
The comedian Stephen Wright once said, “Ninety-nine percent of lawyers give the rest a
bad 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 society
to view attorneys as ambulance chasers and this type of advertising is ruining the dignity of our
profession. Now, with the advent of online social networks, a new type of advertising has
emerged that could be even more devastating to the legal profession than traditional advertising
because 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 advertising
occurring as product placement within visual media such as movies or television. It is a way to
advertise without appearing to “sell” the consumer on a particular product. Recently, covert
advertising has morphed into inexpensive and effective direct marketing through online social

2. networking sites in the form of Facebook pages, Twitter updates, LinkedIn recommendations and
YouTube videos. In fact, Old Spice recently used YouTube and Twitter to conduct a massive
social media ad campaign that went on to become one of the most successful in history. Social
media marketing is starting to catch on and this new phenomenon has left bar associations
asking: “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, in
2006, Pennsylvania Bar Association President Kenneth Horoho, said in his inaugural speech to
the House of Delegates that “some of the advertising being conducted by lawyers throughout our
state is hurting the profession and affecting the public’s perception of us.” To address this
problem, he created the Task Force on Lawyer Advertising in order to make recommendations to
the Supreme Court of Pennsylvania. The report was finished in May of 2007 and addressed
several topics including, “misleading and deceptive websites” and “comparative and superlative
advertising.” Unfortunately, the Task Force noted that some of the rules concerning advertising
were inadequate: “Pennsylvania’s Rule of Professional Conduct 7.1 (Communications
Concerning a Lawyer’s Service), may have been rendered too vague and fails to provide
meaningful guidance beyond the fundamental prohibition against false or misleading
advertising.” The Task Force also implied that testimonials from a former client were acceptable
as 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; but
concluded 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 of
social networking sites to advertise. In 2009, the Florida Bar petitioned the Florida Supreme
Court to consider the issue of attorney websites as they relate to advertising. The Court
addressed the issue in its recent decision, In Re: Amendments to the Rules Regulating the Florida
Bar – 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 expressed
concern was the topic of testimonials on a website. Unlike Pennsylvania, the Florida Bar
considers testimonials by former clients to be a violation of Rule 4-7.2(c)(1)(J) of their Rules of
Professional Conduct. The comment to this particular provision states that endorsements or
testimonials are prohibited, “whether from clients or anyone else, because they are inherently
misleading to a person untrained in the law. Potential clients are likely to infer from the
testimonial that the lawyer will reach similar results in future cases. Because the lawyer cannot
directly make this assertion, the lawyer is not permitted to indirectly make that assertion through
the 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 Director
of 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.”

3. In response to this case, the Florida Bar’s Standing Committee on Advertising approved
guidelines for: 1. Social networking sites 2. Video sharing sites and 3. Lawyer and Law Firm
Websites. It concluded that “pages of individual lawyers on social networking sites that are used
solely for social purposes, to maintain social contact with family and close friends, are not
subject to the lawyer advertising rules.” The Committee went on to note that “pages appearing
on networking sites that are used to promote the lawyer or law firm’s practice are subject to the
lawyer advertising rules.” Thus, Florida lawyers cannot post on websites or social networking
sites information such as, “references to past results, promises of results, testimonials, statements
characterizing 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 been
publishing an annual comprehensive (102 page) manual titled, “Handbook on Lawyer
Advertising and Solicitation” to help guide attorneys.
Pennsylvania has not yet addressed these issues. Therefore, Pennsylvania law firms that
deal with class action cases involving people from multiple states – such as
Asbestos/Mesothelioma suits – could obtain a competitive edge over similarly situated Florida
firms that are also vying to represent these plaintiffs. Faced with the fact that Florida law firms
will now be banned from referring to past results, using testimonials, or characterizing the
quality of their legal services on their websites, eight prominent Florida law firms have protested
the Florida Supreme Court’s proposed rules for web advertising in a 66 page comment that was
recently submitted to the Court.
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 advertising on
social networking sites like, Facebook, Twitter, LinkedIn, and YouTube – which many young
and 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 tend
to perceive the first several websites returned in a Google search as the best, the most
trustworthy, etc. If your web page were the first result in a search for “the best real estate
attorney in Pittsburgh”, you would be perceived as such.
Let’s say your name is Stefano Chiado and you are a relatively unknown Pittsburgh
Attorney 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 real
estate attorney in Pittsburgh – even though you have absolutely no experience in real estate. The
way you would accomplish this is through article marketing.
Article marketing is a relatively new technique whereby a group of writers are hired by
an article marketing company to write several articles and blogs about its client and are given the
parameters that certain keywords must be used several times in the articles. These articles are
then distributed to many different websites where web crawlers see the keywords and link them

4. to the website listed in the article. This is similar to the “Miserable Failure” Google Bomb of
2003, where a numerous amount of people plotted to link the term “miserable failure” to the
White 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 of
President Bush.
Therefore, going back to the previous example, if Stefano Chiado has several articles
written about him being the “best real estate attorney in Pittsburgh” and that people should visit
his website, ChiadoLawFirm.com, for more information, then ChiadoLawFirm.com could
become the first result in a Google search for: “best real estate attorney in Pittsburgh” – even
though Stefano Chiado knows almost nothing about real estate law.
In addition, if a Google search of your name yields unflattering evidence, article
marketing will help you burry such unwanted material. For example, if a former client writes a
blog titled, “Stefano Chiado is the worst attorney in Pittsburgh” and proceeds to write about
Stefano’s terrible representation, a search for “Stefano Chiado” could potentially return a link to
that blog. Article marketing would not only create positive articles about Stefano Chiado that
people could read, but it would also push the former client’s blog several pages deep in Google’s
search 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 result
of a Google search? As of now, bar associations have remained silent on that issue. An
argument could be made from the prior example that since the phrase “the best real estate
attorney in Pittsburgh” was not actually used on Stefano Chiado’s website, he was not making a
misrepresentation. Conversely, a counter argument could be made that he took intentional steps
to try and convince people that he was the best real estate attorney in Pittsburgh, knowing all
along that he was not, which could potentially become a violation of Rule 1.1 of the PA Rules of
Professional Conduct, dealing with competence. One fact, however, remains certain: article
marketing provides an inexpensive and effective way of getting traffic to your website by
making it the top result in a keyword search.
Facebook
Facebook is the world’s largest social networking website. It has now become a great
way 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 a
fan by “liking” it. When a person “likes” a page, this activity is broadcasted in the news feed of
each of the person’s friends, who could decide to also become a fan. It has become an excellent
marketing tool. In fact, when a California manufacturer of ski gear recently developed a
Facebook 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 does
have the ability to post comments, it is possible the owner could choose to display only positive
feedback. If an attorney posts a comment on his or her Facebook page every time that attorney
won a court case, it would appear as if the attorney never loses a case. Facebook pages also
show up in Google searches. Therefore, a potential client could click on an attorney’s Facebook

5. page and see, for example, that an attorney has over 1,000 people who “liked” the page and that
this attorney apparently has a track record of winning cases. In addition, there are now
businesses 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 in
Pennsylvania.
LinkedIn
LinkedIn is a career-oriented site that allows users to build professional networks and
even 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 of
their way to give an unsolicited recommendation, LinkedIn allows the user to request a
recommendation 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 a
person’s LinkedIn page is usually displayed on the first page of Google when someone does a
search for that person. Included in the “basics” section of a profile is how many
recommendations 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 another
because 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 the
knowledge and popularity of LinkedIn increases over the coming years, this issue should be
addressed by the state bar associations. Until that happens, however, the recommendation
feature of LinkedIn offers young attorneys one of the easiest ways to appear more qualified than
an older counterpart.
YouTube
YouTube offers its users the ability to create a profile showing the world what videos that
user has uploaded. If done correctly, YouTube could be the most cost-effective way to
disseminate information in a video format. In fact, many companies are starting to reap the
benefits of using social networking sites to covertly advertise. A recent example was the
ingenious social media campaign from Old Spice that ran during this past July on YouTube. In
the videos, the Old Spice Man would answer live questions from people contacting him via
Twitter. The 150+ videos promoting Old Spice immediately went viral and are still being shared
to this day. It has since become one of the most successful social media advertising campaigns
in history.
Attorneys who are already familiar with traditional and expensive television advertising
have also made the crossover to the free and effective YouTube. In fact, Pittsburgh’s own Edgar
Snyder – the successful and ubiquitous personal injury attorney (and Vice Chair of the
Pennsylvania Bar Association’s Task Force on Lawyer Advertising) – currently has
approximately 210 commercial videos on his channel.

6. Although YouTube provides a unique way for attorneys to market their abilities, it also
provides an opportunity for attorneys to inadvertently circumvent the Rules of Professional
Conduct in regards to advertising. Video blogging is the newest way for people to communicate
their ideas or talents to the world. At what point does bragging about your accomplishments
become a form of advertising?
Is it ethical for an attorney to create a video blog talking about his recent successful court
case 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 almost
12,000 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: “It
could be a traumatic experience for anyone who has suffered personal injury…Frekhtman and
Associate's outstanding track record speaks for itself…and they provide legal consultation free of
cost.” Could “jimwilson8” be a made-up user name by the law firm disguised to look like a
former client? Is this considered a testimonial? Is this considered advertising? Are tactics like
this 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 Pennsylvania
attorneys a competitive edge, assume Stefano Chiado (from the earlier example) created a
professional-looking website: ChiadoLawFirm.com. He hires an article marketing company for
under $1,000 to write articles and blogs about him being the best real estate attorney in
Pittsburgh, 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 recent
legal accomplishments and acquires 2,000 fans. During his free time, he works to create
YouTube video blogs talking about his success in court.
Assume further that a homebuilder, specializing in single-family homes, decides to now
develop commercial real estate and determines he needs an exceptional real estate attorney. The
homebuilder goes to Google and does a search for: “best real estate attorney in Pittsburgh”. This
search would return ChiadoLawFirm.com as the first suggestion. The homebuilder then clicks
on the website and learns about Stefano Chiado while viewing a number of positive testimonials
from past clients. If the homebuilder went back to Google and typed: “Stefano Chiado” into the
search engine, it would produce results for his law firm’s Facebook page of 2,000 fans and

7. numerous testimonials, a LinkedIn page showing that 10 people in the profession recommend
him, numerous blogs and articles all touting Stefano’s expertise, and a YouTube channel where
Stefano has kept several video blogs describing his legal accomplishments. Stefano Chiado’s
hard 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 estate
attorney in Pittsburgh.
It is somewhat interesting that some of the aforementioned tactics in this article would
most likely be deemed unethical in Florida, but good business sense in Pennsylvania. Utilizing
social networks in order to advertise your legal skills is an issue the Pennsylvania Bar will most
likely 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 truly
unethical, one fact remains true: using social networks to covertly advertise legal services is an
inexpensive and effective way for young Pennsylvania lawyers to have a competitive edge over
their 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 the
Autism Help Network and a former Field Instructor for the University of Pittsburgh’s School of
Social Work.