Monday, April 18, 2011

Do Marketing Ethics and the FTC Advertising Regulations Matter in the Social Media Age?

P.T. Barnum is credited with the phrase, "There's a sucker born every minute." Social Media provides entrepreneurs so many new opportunities to expand their brand and footprint in many exciting and fun ways. However, social media also provides snake oil salesmen and others whose ethics are questionable the ability to defraud in ways not imagined until a few years ago.

After a recent speaking engagement, a lawyer approached me and said, "I think I have been duped the way Oprah was by James Frey." The lawyer told me he had bought a book on that had an amazing initial editorial review. For the record, the book's official editorial review states, it "is a 'must-read' for all law firms. Indeed, it should be studied avidly, not only by lawyers, but also by any professional service firm that wants to grow its business fast using Web 2.0 techniques. As a successful New York attorney turned social media guru, [name removed] deals with his subject comprehensively and with an easy authority." The author of the social media book that the lawyer bought is self described social media expert Adrian Dayton.

With the above editorial review along with Mr. Dayton's celebrity like Twitter Following to Followers ratio, the lawyer told me he believed that he was buying a book from a real social media expert. The lawyer said that he thought that anyone who had around 50,000 followers but only had to follow several thousand people in return must be an expert in teaching others how to harness the power of Twitter to build their business.

After listening to me discuss Social Media Credential Fraud, the lawyer told me he was angry at himself for blindly believing Mr. Dayton's official biography without doing any further due diligence. He stated that despite following Mr. Dayton's recommendations for the past 9 months, that tweeting will build your book of business, he doesn't have any business development progress to show for his efforts. I told the lawyer that since I have been tweeting from @bradleyshear on June 15, 2009, I have not had a single legal client contact me and say, "I love your Tweets, you're hired!" I have tweeted more than 2,000 times from @bradleyshear.

Attorney Brian Tannebaum's blog posts about Mr. Dayton on November 9, 2009, November 26, 2009, December 3, 2009, June 16, 2010, and February 9, 2011 reveal that Mr. Dayton may be embellishing his credentials and may have a problem with truth in advertising (i.e.Rule 7.1 of New York's Rules of Professional Conduct and the the FTC's Advertising Regulations). Last year, Mr. Dayton un-followed at least 47,000 people on Twitter. As of this writing, Mr. Dayton is following 7,533 people and has 41,026 followers.

If you didn't know that Mr. Dayton has already un-followed at least 47,000 people on Twitter, you may have the impression that he has an organically created rock star like Twitter Following to Followers ratio. However, the numbers don't lie. Mr. Dayton has followed at least 14,000 more people than are following him back. Having to follow at least 54,533 people in order to receive only 41,026 followers in return is not very "expert like." Mr. Dayton's Twitter activity demonstrates that he is a social media expert at one thing: following tens of thousands of people on Twitter and un-following tens of thousands of people on Twitter. That is it.

I challenge Mr. Dayton to dispute Mr. Tannebaum's and my allegations. I take great pride in being a lawyer and like thousands of other lawyers I made many sacrifices to become a lawyer. I find it offensive when a non-practicing attorney such as Mr. Dayton continues to mislead the public without any repercussions. Since first writing and speaking about Mr. Dayton's activity without naming him, I have not had a single lawyer state that Mr. Dayton's conduct is ethical or legal.

In previous blog posts, I initially did not name Mr. Dayton to provide him the opportunity to take corrective action (he started following me again on Twitter recently so I am sure he has read my April 1, 2011 and April 8, 2011 blog posts about Social Media Credential Fraud). Unfortunately, Mr. Dayton has not yet taken corrective action.

Caveat emptor when hiring "experts". Don't be a sucker. At least perform a Google search to learn more about an "expert's" credentials. Just because someone calls himself/herself an expert and has a social media profile that appears "expert like" does not make it so. As Malcolm Gladwell states, it takes at least 10,000 hours to master a craft.

To learn how to avoid violating the FTC Advertising Regulations you may contact me at

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.


  1. Mr. Shear, I don't know what axe you have to grind, but it's clear that you are totally wrong about Adrian Dayton. I've been in legal marketing for 20 years, and Mr. Dayton is a class act. He knows his stuff, he's a smart guy, and he's been retained my major law firms like Womble Carlyle.

    Regrettably, I was informed about your blog by law firm marketers who were chuckling about a "crank" who was posting ad hominem attacks against people.

    You may know social media law, but you've demonstrated that you don't know anything about social media marketing.


    Larry Bodine, Esq.

  2. Mr. Bodine, Thank you for reading my blog and for your comments. I appreciate and welcome the dialogue. The next time you are in the DC area please contact me so we can get a cup of coffee to continue this conversation in person.

    If you read my blog on a regular basis you will realize that I have no axe to grind. In fact, if Mr. Dayton did not initially follow me on Twitter in the first place and then un-follow me after I followed him back I would have never have figured out what he was doing and discovered Social Media Credential Fraud. Since first blogging about Social Media Credential Fraud several months ago, I have not heard from or met a single practicing lawyer who says that this activity is ethical or legal.

    A Twitter account utilized for commercial purposes is an advertising platform and subject to the FTC Advertising Regulations. Intentionally creating the false perception that you you have a large number of Twitter followers without the need to follow a large number of people in return on Twitter is unethical for lawyers under New York's Rules of Professional Conduct and it violates the FTC Advertising Regulations. Why does Mr. Dayton hide the fact that he needed to follow at least 54,533 people in order to receive only 41,026 followers in return? Here is a link to a recent article that may explain Mr. Dayton's actions:

    Do you believe that the ethical issues raised by Attorney Brian Tannebaum regarding Mr. Dayton are trivial? Are you defending Social Media Credential Fraud as both an ethical and legal way for law firms to increase their visibility and credibility online? Do you advise your clients to practice Social Media Credential Fraud? Social Media Credential Fraud is not standard operating procedure by non-legal marketers so is it standard operating procedure by some legal marketers?

    Personally attacking me and making false accusations against me I would have hoped would be beneath you. I could personally attack you online but I would rather wait until we have a cup of coffee...:) From the tone of your comments it only makes me wonder if I have discovered a major problem in the legal marketing community that needs to be further investigated or did I just find a few "bad apples". Please advise. Thank you.

  3. I don't get the whole "follow/unfollow" schtick. Regardless of what it says about one's social media skills, it would certainly seem at minimum to be bad Twitter manners.

    Is there a credible explanation for even this basic point?

  4. Wow, sad to see Larry. I knew it would happen at some point - that a long time marketer like yourself would get sucked in to the circle jerk of marketers singing the praises of someone like Adrian Dayton. I'm sorry you have joined the chorus, and made clear here that all of the lies Adrian has told in order to get retained by BigLaw are of no matter to you. That's too bad, I always thought ethics were at the top of your list.

  5. Dear South Florida Lawyers,

    Thank you for visiting my blog and continuing the conversation and engagement. Schematically following tens of thousands of people on Twitter with the specific intent that once you have received a follow back you will then un-follow those followers or perform a mass un-follow is more than bad manners it is Social Media Credential Fraud.

    Corporate America is making monetary decisions based upon social media profiles. For example, one of my clients was recently asked by a corporate sponsor about their social media footprint.

    Actively trying to create a false and misleading footprint on a Twitter account utilized for commercial purposes is fraud. Allowing this activity by a small number of unethical legal marketers to continue only hurts the entire legal marketing community. The overwhelming majority of legal marketers are honest and hard working and I would hate to see their reputations tarnished due to the unethical and illegal activity of the few.

    If the legal marketing community refuses to police itself the FTC will eventually step in like they did in the Legacy Learning matter. The last thing that I want for my clients is more regulation. Therefore, it is imperative to stop Social Media Credential Fraud before it become an epidemic.

  6. Kudos, Bradley, for exposing the social media credential fraud artistry and Twitter gaming tactics of Adrian Dayton. I am sure there are other social media law marketeers that are burying their heads in the Twitter quicksand or scurrying back into their rabbit holes.

    As far as Larry Bodine's onanistic defense of Dayton: "I've been in legal marketing for 20 years, and Mr. Dayton is a class act. He knows his stuff, he's a smart guy, and he's been retained my [sic] major law firms like Womble Carlyle", the appeal to pseudo-authority is laughable. So, too is the churlish reference to Bradley Shear as a "crank"; sour grapes and wagon-circling from the Flawgosphere. As Scott Greenfield remarked on Twitter: "It gets ugly behind the marketing curtain."

  7. Mr. Tannebaum,

    Thank you for reading my blog and continuing the conversation. I welcome Mr. Bodine's opinion and highly encourage Mr. Dayton to also provide his opinion in this forum.

    However, I find it very disturbing that Mr. Bodine would personally attack me in such an unprofessional manner. There is an old legal saying that I remember my 1st year contracts law professor told my class and it went something like: "If you can't argue the facts, argue the law, if you can't argue the law argue the facts, and if you can't argue either the facts or the law, attack opposing counsel." I have already made my argument so I welcome Mr. Bodine to argue the facts and the law so the legal and legal marketing community may determine who is correct.

  8. Mr. Pribetic,

    Thank you for reading my blog and continuing the dialogue. I am still waiting for a legal marketing leader to step up and say that Social Media Credential Fraud is not an acceptable practice.

    The non-legal marketing community does not put up with this type of behavior so there is no reason why the legal marketing community and law firms should accept it either.

  9. I had missed this and only picked it up via Twitter from the always awesome Antonin. I hadn't figured out the Teitter follow/unfollow game. I imagine I am one of the stats and will correct it. I take minor issue with your reference to 1st Am rights in your follow up. While free speech values and openness are important, Bodine has no 1st Am rights to speak on private blogs. Still, I think you handled it all very well.

  10. Mr. Sugerman,

    Thank you for reading my blog and participating in the conversation. In addition, I appreciate the compliment on the way I handled Larry Bodine's unprovoked attack against me and his unprofessional and self-serving remarks.

    From your comments, it sounds as though you may also be referencing my April 24th, 2011 post regarding my usage of the 1st Amendment. My apologies for the lack of clarity in my reference to the 1st Amendment.

    While re-reading the statement that I believe you are talking about I can see how it may sound as though I am stating that Mr. Bodine has a 1st Amendment right to comment on private blogs. That was not my intent. I did not intend for readers to think that Mr. Bodine has a 1st Amendment right to comment on my blog. I only brought up the 1st Amendment because I feel strongly in Larry Bodine's right to refer to me as a "crank" and state that I don't know anything about social media marketing. If Larry Bodine wants to defend unethical and misleading social media marketing tactics that is his prerogative.

    I appreciate that many lawyers have been extremely supportive in my stance against Social Media Credential Fraud. Several legal marketers have also contacted me privately to tell me they are troubled by this unethical and misleading marketing practice. Unfortunately, the legal marketers who have reached out to me are afraid to go on record for fear of being ostracized by some members of the legal marketing community.

    Thank you for adding value to the conversation.

  11. Very interesting post. I think that the practice might also offend the FTC's recent rule on Endorsements and Testimonials. The practice of not listing how many people that you have unfollowed would appear to be a relevant omission. (There may be entirely good reasons for unfollowing Twitterers but it would give a misleading impression of your authority if you left out this statistic.)

    Good for you in bringing this practice to a larger audience.

  12. Mr. Webster,

    Thank you for visiting and adding to the conversation and engagement. As lawyers, we need to collectively take a stand against Social Media Credential Fraud and other unethical and misleading advertising methods.

    There may be entirely good reasons to un-follow some Twitter accounts. However, the only reason to un-follow tens of thousands of people on Twitter is to mislead and deceive about one's true Twitter and social influence.

    I am very disappointed that the legal marketing community has not publicly taken a stand against this practice. The legal marketing community's silence on this issue demonstrates a lack of leadership. Therefore, Social Media Credential Fraud may unfairly tarnish many honest and hardworking legal marketers. I challenge the legal marketing community to take a stand against Social Media Credential Fraud.