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Ghost law blogging is unethical : Nearing a consensus

Ghostwritting Ghost written law blogs

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.”

So:

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

  • DS

    Question for the author:

    While reading your post, it occurred to me that there might be some potential defenses for ghostwriting blog posts, so long as some additional steps were taken. I would like to know your views on hiring someone to write a post for the attorney, the attorney reviews it and makes necessary changes to ensure accuracy, and then posts it under (1) their own name; or (2) the law firm’s general name.

    It seems to me that if they take the step to then put the final stroke of the pen to the post, so to speak, that they can claim at least part authorship much in the same way many professors do in their law review articles. Likewise, if it is released under the firm’s name, then there is no guarantee on who wrote the piece other than someone employed by the law firm. Do either of these scenarios seem like they could rise to the level that is *just* truthful enough to pass muster?

    Thanks for your time! Very interesting and thought provoking post!

    • http://kevin.lexblog.com/ Kevin OKeefe

      Think conversation.

      If I represent I am talking to you and you are relying on what I say in deciding whether I am the right lawyer for you, and you then find out it was someone else talking for me, do you feel misled?

      We’re not dealing with a can I skate by standard, we’re dealing with a standard based on what real people, not lawyers, expect.

      • DS

        I completely agree with your assessment that this is the standard which should prevail. I do, however, see someone making the points I raised above in defense, and with far more research/authority cited than I put in it. It really makes me wonder how this issue will ultimately play out. Perhaps somewhere in between?

        • http://kevin.lexblog.com/ Kevin OKeefe

          Of course, people will make the defense with all the authority in the world. It doesn’t stop the practice from by being sleazy, lazy, and misleading people. Add to that, as a lawyer, if you make that case to the state bar or supreme court and are held wrong you’ll receive a boat load of publicity for being unethical.

  • Jen

    You and Ms. Goold raise an interesting topic for discussion…I think I’ll be mulling it over all day.

    My initial thought: Why draw the line at blogging?

    As former managing editor of the magazine originally known as Corporate Legal Times, we regularly published articles where byline credit was shared by a law firm partner and in-house counsel. Only in the rarest of instances would the authors ask us to include a note acknowledging that an associate did some amount of the work on the article. In reality, it was common knowledge that an associate probably did a substantial amount of work on the article (research, writing the first draft, or even writing what turned into the final draft).

    Was anyone surprised by this? It certainly wouldn’t surprise anyone who works in the legal world. After all, law clerks draft opinions, associates draft memos and briefs, etc. The profession is built around a model where more senior attorneys routinely take credit for work where others made significant contributions. So where does one draw the line? After all…marketing doesn’t just happen in blogs.