Sorry lazy lawyers and marketing professionals selling ghostwritten blog posts. Lawyers and many other professionals are coming close to a consensus that ghost-blogging is unethical. The most recent discussion took place on Facebook and Twitter this week.
Until now it was like talking religion or politics with the flak I received when expressing my belief that using a ghostwriter for your law blog was unethical. “Lawyers are too busy, they ought to have someone else write their blog posts. Law firms hire copywriters to do their website copy, they can do the same with blogs. Lawyers don’t write all their own briefs and pleadings, what’s wrong with having someone else blog for you? Lawyers write legalese, journalists can pen stories that’ll break you out of the pack.”
These folks, of course, miss that a blog, likely to be construed as advertising, cannot include misrepresentations such as “I wrote this blog post, as evidenced by the the byline, when in fact I did not.”
Columbus employment lawyer, Kailee Goold (@kaileemgoold) penned a nice summary of the twitter discussion and an analysis of why ghostwritten blogs raise ethical concerns on the Ohio Legal Ethics Blog.
We begin with Josh King (@joshuamking), General Counsel and Vice President, Business Development for Avvo, who identifies the two ethical rules in play in ghost-blogging – 7.1 and 8.4.
Though a blog is arguably pure free speech, I’ve always taken a conservative view and assumed states will construe law blogs as advertising under ethics rules. Gould agrees.
Although there is debate over the extent to which the First Amendment protects attorneys’ blogs, I believe most blogs are commercial speech and thus can be regulated. (Most practicing attorneys who blog do so to get business). Regardless, when you pay someone to write the content your blog is commercial speech.
Back to the misrepresentation point, per Gould, ghost-blogging violates Rule 7.1. Ohio rule 7.1 (similar to other states):
A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer 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.
Comment 1 clarifies: “Whatever means are used to make known a lawyer’s services, statements about them must be truthful.”
Placing your name as the author of a blog post on a post you did not author is a false and misleading communication about you and your services to the public at large. The false part doesn’t need much analysis. You are simply saying you authored a post you did not author.
…[C]ommon sense rules here. You’re claiming authorship of something you didn’t author – a misrepresentation of fact.
In addition to saying you penned something you did not, a ghostwritten blog can be a misleading communication about a lawyer’s abilities.
The ghost-written post may be better written, funnier, or just plain different than the attorney’s own work product. Even worse, the post may have a completely different perspective or contain better ideas than what the attorney is capable of.
Either way, this mislabeling is material because attorneys’ names carry weight. Attorneys have stricter ethical rules than other professions precisely because they are viewed differently. Thus—right or wrong—almost anything with an attorneys’ name on it is subject to higher standards and reliance in the public’s eye. Not to mention the fact that the clients rely on blog posts when selecting an attorney.
If it’s not enough that ghostwritten blogs violate rule 7.1, Rule 8.4 (c) provides it’s professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
For the same reasons discussed above, having someone’s name appear as the author who did not in fact author the post is a misrepresentation or an act of dishonesty. In fact, it may be easier to argue that this Rule is violated because the misrepresentation need not be material to constitute misconduct under Prof.Cond.R. 8.4(c).
I don’t expect ghostwritten law blogs to go away. Lawyers are unlikely to report another lawyer to the bar or ask the bar for an advisory opinion.
Capitalism drives it as well. Lawyers who have little idea what blogs really are just want one to keep up with their competitors. And as with websites and SEO, marketing companies never let a thing like a customer’s license being at stake get in the way of a buck.
Image courtesy of Flickr by Jon Feinstein