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Are ghostwritten lawyer blogs unethical?

The ghostwriting of blogs is apparently becoming the rage for attorneys and law firms.

A law firm who our client development team spoke with yesterday afternoon knowing that LexBlog doesn’t author lawyer’s blogs asked if we had a recommendation for someone who could do so.

A lawyer with the firm said a marketing person told them the firm needed a Facebook page, a Google+ page, a Twitter account, and a blog. The marketing person said they could hire a ‘bunch of college students’ who would write the blog posts and post to the other social media media on a regular basis – in some cases, multiple times a day.

Put aside the ghostwriting of law blogs being shortsighted (you don’t farm out networking, relationship building, and the demonstration of your expertise), there’s a question whether it is ethical for an attorney to have someone else blog for the lawyer or their law firm.

Lawyer advertising is governed by each state, whether by the state’s supreme court or bar association. Rule 7.1 of the ABA’s Model Rules of Professional Conduct is typical of state’s restrictions on lawyer advertising.

A lawyer shall not make a false or misleading communication about the lawyer’s or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Is an attorney’s failure to disclose that their blog posts are written by someone other than the attorney or law firm misleading? Is doing so omitting a fact (that you did not author the blog posts) so as to make what you are doing as a whole materially misleading?

I think a real case can be made that it is misleading and unethical.

When the question of whether ghost written blogs are unethical was raised by the ABA Journal a couple years ago, Attorney Josh King, VP, Business Development & General Counsel for Avvo, Inc. said “Ghost blogs are unethical if there’s no disclosure.”

Some lawyers argued that much of the work product law firms do is written by one lawyer, while attribution is given to a more senior lawyer. To which King responded:

Unlike a ghostwritten blog, a lawyer or law firm’s work product isn’t advertising.

Attorney advertising is subject to Rules of Professional Conduct, the most critical of which is that marketing communications can’t be deceptive.

Passing off someone else’s writing and ideas as one’s own, in a marketing vehicle designed to showcase an attorney’s engagement with and competence in a given area, is deceptive.

King was not along in his belief that ghost written blogs are unethical.

  • From well respected Houston Criminal Defense Attorney and blogger, Mark Bennett:
  • Claiming someone else’s words as your own (which is, by definition, what using a ghost is) in order to increase your own credibility (which is how the ghostblogger in question markets it) is deceptive.

    Some deception is countenanced in most areas of commerce (advertising often involves deception), but lawyers have ethical duties that nobody else has.

    Using a ghostblogger may not be illegal (that is, violative of rules carrying official sanctions) but it’s unethical.

  • From well respected Miami Criminal and Bar Grievance/Admission Attorney, Brian Tannebaum:

    Ghostblogging is nothing more than lying. I wrote about it on my blog. Lawyers today want a blog because it helps their Google placement. Lawyers like me and others who started blogging 5 years ago, blog to express our thoughts, not to get clients. As to courtroom lawyers not having time to blog – that’s an excuse that allows lawyers to have ghostbloggers and feel ethical about it. Lawyers who believe that ethics are satisfied by paying a ghostblogger to write for them, while the public thinks it’s the writing of the lawyer, should be disbarred and go sell used cars. I’m a trial lawyer, I find time to blog by waking up 15 minutes earlier. Not every blogger sits in Starbucks with free wifi all day.

No question the public can feel mislead by a ghostwritten blog. This from a consumer of legal services who responded to the ABA Journal’s question:

I’m not an attorney but I read blogs and I can assure you, if I read something, signed by someone, it better be from the mind of that person or you are seriously misleading me and perverting my journey. Undisclosed ghostwriting is nothing but consensual plagiarism and I have a right not to expose my self to that in personal favor of following someone who takes the time to actually think about what they write. ;)

Plagiarism, as defined in the 1995 Random House Compact Unabridged Dictionary, is the “use or close imitation of the language and thoughts of another author and the representation of them as one’s own original work. ..

Thomson Reuter’s FindLaw apparently knows ghostwritten lawyer blogs are unethical. As I shared yesterday FindLaw is selling ghostwritten blogs, paraphrasing news reports and legal updates, to law firms.

Rather than listing a lawyer or law firm’s name as the author of a blog post, FindLaw says the post is ‘On behalf of’ the name of the lawyer or firm.

Some law firms will list the author of their blog posts as the law firm. I don’t see anything misleading there, no matter who at the firm writes the blog posts. The blog posts may not be as effective for business development as blogs citing the individual attorney author, but it doesn’t look like an ethics issue.

In the long run, attorneys and law firms are going to benefit little, if any, from ghostwritten blogs. The vast majority of ghostwritten blogs paraphrase news and legal developments reported elsewhere.

Many of these ghostwritten blogs are going to damage the reputation of the attorney and firm. The exact audience you’re looking to reach – reporters, clients, prospective clients, and other bloggers who cite and share your offerings – will be turned off by such blogs that offer no value.

Bottom line, you’re skating on thin ice from an ethical standpoint when it comes to ghostwritten law blogs. I’ve seen attorneys run before their state supreme court or bar association on ethics complaints with less basis.

And in addition to other types of ethics complaints, this would be one that would draw a ton of publicity on and offline. Nothing gets more sensationalized when it comes to legal news today than lawyers and social media.

You may also discuss on the discussion forum at the LinkedIn Legal Blogging Group and on Google+.

  • https://twitter.com/gaillamarche Gail Lamarche

    I couldn’t agree more. As a legal marketing professional, I think it’s absurd and unethical to have law blogs ghostwritten. How can you showcase your lawyer’s expertise in a given subject when someone else is doing the writing! Thank you for bringing this discussion to the forefront, Kevin!

  • http://thirdapple.com Bill Wilson

    This is a good question and a needed discussion. On the one hand, I see how ghostwriting blog entries could be unethical. On the other hand, how many law firms have hired PR firms that end up writing those glossy brochures and TV ads?
    I see a big difference, though, between the two. Blogs are supposed to be personal, not marketing fluff (no offense to the PR folks–fluff has its place, too). Why a lawyer would do anything to mislead another and think it would be to the lawyer’s benefit is beyond my grasp.

  • http://www.cybermarkintl.com/des-moines-seo.php Kimberly Judd-Pennie

    I think Bill makes a great argument. Blogs are usually more personal, while other marketing strategies (TV ads, etc) are not. Ghostwritten blogs by a “bunch of college students” is definitely unethical.

  • http://www.thelegalshakeup.com Laura Gutierrez

    Not only it is on the border of unethical, it’s a terrible move from a marketing standpoint. How will clients and followers react if that information is shared with the public? Ease nor SEO aren’t good enough reasons to start a ghost-written blog.

  • http://www.thesearchninjas.com George Murphy

    This is a very good post, and something I’ve struggled to deal with for a while now.
    I’ve been doing legal web marketing for 4 years now. My company offers social media and content for lawyers, but no matter how much money there may be in it, my beliefs are that:
    a) I agree that it’s unethical to represent a lawyer by blogging or posting for them in social media, especially with a lot of the content being posted by freelance writers with little or no legal experience.
    b) There way are too many liabilities involved when it comes to representing lawyers in opinionated and/or expert-related mediums. There are just too many aspects involved in terms of political views and possibly incorrect information.
    c) There is a lot of content that is put up on legal sites which has no business being posted on a lawyer or firm whose website’s sole purpose is to solicit business and obtain leads. I’ve seen law firm sites that turn into “wannabe” news sites, because they just regurgitate news stories on things like local accidents. E-ambulance-chasing at it’s best.
    There are certain things you can do as a legal web marketing provider to save your clients time, but you always walk a fine line between marketer/advertiser and spammer and the “more content is good content” model couldn’t be more unethical in my opinion, especially if that content is posted by freelance writers with no experience in the legal field.
    The saddest thing is- a lot of lawyers are so checkbook-happy when it comes to a service that supposedly works and/or saves them time.

  • Tim Maher

    I am not sure I agree that it is unethical I would analogize it to:
    1. Website content. A website is definitely an advertisement. But, I doubt that most law firm websites contain 100% original content. It is very easy to simply purchase a description of “Estate Planning” to provide information to prospective client about the services that law firm offers.
    2. Contract attorneys. This is a case where a lawyer hires someone to write a brief and signs it (under Rule 11) and presents it to the Court as the lawyer’s work. Now, that does not fall under advertising, but do we think that hiring a brief-writer is deceptive or misleading? I think most would say that it is not.

  • http://www.elderlawblog.info Brian Barreira

    Why not use social media against them?! Why not come right out and name all the names of the lawyers and firms receiving ghostblogging benefits? If all of us who write our own articles “like” your article, won’t your article potentially come up high in certain google searches about them, thereby giving them a reason not to continue what they’re doing?

  • Ryan Alexander

    I think your conclusion is a little too proactive.
    You fail to scrutinize all of the other work product a law firm produces unpublished by an attorney, even when such work product generates the billings of the firm. Should not work product also come with a disclosure that not all words drafted were those contributed by the signatory?
    Neither blogging nor such non-lawyer contributions are unethical because of a firm’s review process.
    My law firm doesn’t print or send one word to the outside world before it’s vetted and carefully scrutinized by a senior attorney. Just because a college-aged person is writing a blog for a law firm doesn’t mean it’s not getting the review of a senior member of the firm.
    The only rule applicable to advertisements is the requirement for the advertisement to have the name of the responsible attorney printed on the advertisement. It’s the designated responsible attorney’s job to review and be accountable for the advertisements.
    I disagree with you.

  • http://CircuitSplits.com Nicholas Wagoner

    Great post. I agree that, setting aside the ethical issues raised by hiring a ghostwriter, it’s a bad move from a marketing standpoint as well. As this post points out, ghostwritten blogs, particularly those written by nonlawyers, typically just rehash what others have already said; generating white noise that readers simply tune out.
    As for the ethical implications of ghostwriting, it’s worth noting that several federal circuits have tackled the related issue of lawyers ghostwriting pleadings for pro se litigants. A circuit split has emerged over the issue, which you can read more about on my blog here:
    http://www.circuitsplits.com/2012/01/2nd-circuit-creates-split-over-lawyer-ghostwriting-ethics-issue.html.

  • http://www.zenlawyerseattle.com Pat Trudell

    I agree it makes no sense to have a blog and allow a ghostwriter to do the blog. The purpose of a legal blog is to give back to lawyers and the public by way of posting original from the heart entries.
    I draft all of my posts-www.zenlawyerseattle.com- and enjoy the process.

  • http://www.ethicsmaven.com Eric Cooperstein

    I agree that there are many practical arguments against having someone else ghostwrite a lawyer’s blog but concern about violating Rule 7.1 should not be one of them. As long as the lawyer reviews the material before it is posted and checks it for accuracy, I do not think that the omission of the identity of the scrivener would be a “material misrepresentation of fact” concerning the communication, or the omission of a fact that makes the blog post as a whole materially misleading. The rule focusses on the message, not the messenger.
    I found the comment of the anonymous ABA journal commenter to be quite amusing: “Undisclosed ghostwriting is nothing but consensual plagiarism.” That’s a great oxymoron: if it’s consensual, then by definition it is not plagiarism. Are law professors engaging in misrepresentation when they have law students write sections of law review articles for them? Does it make a difference if an associate writes the blog post for a senior attorney, rather than an outside consultant? Do you think the President writes the State of the Union address himself?
    Rail against ghostwritten blogs all you want, but let’s leave the fear of ethics violations out of it.