Ethics

Website Professionals and Lawyer Ethics

Many attorneys use non-lawyer “website professionals” to host their websites, blogs, and to draft their content. I’m not here to detract from anyone’s expertise or to tear down any particular company, and it’s not my place to say whether someone is a “website professional.” If you are an attorney and you are marketing legal services, however, you need to consider that you will be judged by the content that your ghostwriter places on your websites. When you outsource your marketing, you outsource your ethics, and non-lawyers often do not understand or care about the ethics rules that govern lawyers.

A South Carolina ethics opinion from April of this year illustrates the most common ways you can go wrong by using a non-lawyer website professional to create the content for your website and social media.

Website Ethics Violations

The attorney in question received a public reprimand that will forever appear next to their name on the bar’s website and appear in online searches. Their non-lawyer website professional copied and pasted content from other attorney’s websites. Besides the obvious problem of owning a website that contains plagiarized content, the website included misleading information such as:

  • The website implied there were multiple lawyers in the law practice when there was only one.
  • The website claimed that the attorneys had “over 12 years of experience,” and “fifteen years of combined experience” when there was only one attorney who had only practiced law for eight years.
  • The website referred to the attorney as an expert when the attorney was not certified in any specialization.
  • The website advertised an area of practice in which the attorney had no experience and did not accept cases.

Social Media Ethics Violations

The attorney also hired a non-lawyer to make posts on Facebook related to the attorney’s practice but did not monitor the content of the posts which included:

  • Facebook posts that revealed client’s names and details of their cases without the clients’ permission.
  • Descriptions of the attorney’s legal services as the “best” which made unsubstantiated comparisons to other attorneys’ services.
  • Advertisements for special discounted rates for legal fees that did not disclose anticipated costs.

How do you avoid marketing-related ethical violations that could result in a public reprimand or worse? Hire a company that employs writers with law degrees and that focuses solely on attorney websites. They might cost more than your local Acme Website Company, but it is a fact that the structure and content of lawyer websites require a level of expertise that many website professionals do not have.

Regardless of who designs or hosts your website or blog, take control of the content. Ideally, you should draft the content yourself. If you do not have the time or motivation to draft the content yourself, ensure that the person drafting your content understands and cares about the ethics rules. Always review and revise your content before allowing it to go live keeping in mind the ethics rules and the quality of the content that your prospective clients will be reading on your websites.

Free Online Plagiarism Checkers

A few days ago, I discovered that at least four webpages that I drafted content for over 10 years ago had been lifted verbatim and copied to another attorney’s website. On the one hand, I feel flattered that the unethical writer chose my content to copy. Clearly, they liked it better than the hundreds of other law sites that they could have copied from. On the other hand, duplicative content negatively affects a website’s search engine placement. The plagiarizer is not only hurting their own client, but they are affecting my client as well.

This set me on a quest to find an online plagiarism checker that actually works. I’ve spent most of today testing every free plagiarism checker that I could find and most paid plagiarism checkers that would allow a free trial. I tested 18 services and found only two that worked.

How do You Avoid Duplicative Content on Your Site?

As far as I can tell, the website that lifted my content was not written by the attorney. The website’s owner was extremely apologetic and promised to take the pages down and redraft them immediately. The attorney hired “a guy” who drafted the content for them and did not expect that “the guy” would simply copy and paste content from someone else’s website.

This was not a case of similar content that discussed the same practice areas on each website. It was copied and pasted directly from the original site. No one expects this to happen when you hire someone to write content on your site. But how can you avoid it? First of all, hire a professional to write your content. A professional writer whose reputation depends on their work product will not lift material from other websites, and they will use a plagiarism checker to ensure they are not inadvertently reproducing the content.

The second method is to check the content on your website yourself. But how?

Online Plagiarism Checkers

Based on my pseudo-scientific tests, most of them do not work. I took four original webpages that I knew had been copied and pasted to another site. I checked each website and confirmed that the content was duplicated verbatim and that the plagiarized webpages were still online. I then copied a paragraph from each of the four plagiarized webpages into each of the following online services. The results:

  1. Regular old Google search: Does not work. It finds the original website but for some reason did not turn up the duplicative content.
  2. Plagium.com: Does not work. Did not even find the original site’s content. No plagiarism found.
  3. Copyscape.com: Although praised in several places as a tried and true plagiarism checker, it does not work. It searches using the original sites URL instead of text and found no plagiarism.
  4. Dustball.com: Does not work. No plagiarism found. Then it suggests that, if I pay a subscription, the results will be 3X more accurate. I’m not buying it.
  5. Plagiarisma.net: Does not work. Plagiarisma did find the original website but did not find the plagiarized webpages.
  6. Quetext.com: Does not work. Quetext did find the original website.
  7. Plagiarismcheck.org: Does not work. It did find the original website.
  8. Plagiarismchecker.com: Does not work. It limits your search to 32 words, and it did find the original website.
  9. Searchenginereports.net: Does not work. Did not even find the original website.
  10. Duplichecker.com: Does not work. It did not find the plagiarism and would not run additional tests unless I create an account. Their website has constant pop-ups advertising for Grammarly.
  11. Smallseotools.com: Does not work. Did not even find the original website. And… pop-ups advertising for Grammarly.
  12. Plagscan.com: Does not work. It says approximately 10% of the content is plagiarized, but it lists two sites that did not copy the material while missing both the original and plagiarized site.
  13. DMCA.com: I ran one search with the webpage’s URL, and wasn’t sure what the result was. So I tried it again, and it gave me a message that said my two free searches had been used and I needed to sign up with them. Inconclusive, but I’m not going to go through a registration process when the results are already suspect.
  14. Whitesmoke.com: Claims to allow a free search to test their product, but I could not find it. Everywhere I looked and clicked on their website I was redirected to a sign-up page with subscription pricing.
  15. Prepostseo.com: Does not work. It did not even find the original website.
  16. Grammarly.com: Everywhere that I looked, people recommended grammarly.com. I have been using their free grammar checker for some time and I can recommend it. Although they are running a Google Adwords campaign with ads titled “free plagiarism checker,” there is no free plagiarism checker. I even emailed their customer support to confirm there is no way to test the service before paying. I was immediately concerned about the dishonest advertising. Because so many people are recommending the service, I went ahead and signed up for one month to test it. Grammarly consistently found the original website but did not turn up the offending plagiarized site in any of my searches. I have already canceled and requested a refund, and I do not recommend them for plagiarism searches.
  17. Paperrater.com: Finally! This is a free service that found not only the original website, but the confirmed plagiarized site as well. It located the plagiarism in all four webpages that I searched.
  18. Unplag.com: Yes! Unplag.com is also a free service. It found the original website, the plagiarized website, and several more. It turns out there are several forums or message boards that also copied and pasted content from the same webpages, and this is the only service that found them.

My conclusion: Even the paid services did not find plagiarism that I confirmed is online and has been online for some time. The only services that worked were the free services paperrater.com and unplag.com. The paid service that everyone seems to be recommending, Grammarly.com, lies in their advertising and did not find the confirmed plagiarism that I was searching for. I recommend using either paperrater.com or unplag.com to check the existing content on your websites and to run a search before publishing new material.

I would love to hear if there are any services that I missed or if anyone has had different experiences with these services.

Ethics and Ghost-Bloggers Part II

When I decided to start ghost-blogging for attorneys, the first thing I did was to research the ethics of ghost-blogging for attorneys. Anyone who has worked with me or followed my blogs while I was in practice knows that the Rules of Professional Responsibility have always been important to me and that it was often a topic that I wrote about. It is important to me that:

1) My conduct is not unethical, whether per the Rules or my own personal code of conduct; and

2) I am not assisting someone in conduct that is unethical and that would be a violation of the Rules.

What I found online was a controversy dating back to possibly 2008 or 2009 that was played out on several blogs over the years, mostly in 2010 and 2014. A cadre of respected bloggers somehow reached the conclusion that ghost-blogging is per-se unethical, misleading, fraudulent, and dishonest in violation of Rules 7.1 and 8.4. In fact, the only opinions stating that ghost-blogging is unethical are on blogs, by bloggers who write their own material.

In 2014 Kevin O’Keefe at Lex Blog announced that it was “nearing a consensus” that ghost-blogging is unethical.  This conclusion was apparently based on Twitter and Facebook conversations that he had been involved in:

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.

Besides the Twitter and Facebook conversations, O’Keefe cites an Ohio employment lawyer and blogger on the Ohio Legal Ethics Blog, who cites to Rules 7.1 and 8.4 and explains why she believes that ghost-blogging is unethical. This is typical of the blog posts/ conversations that turned up when I googled the issue – a blogger cites the text of Rules 7.1 and 8.4, then cites to another blogger who cites to the text of Rules 7.1 and 8.4, each with their opinion as to why ghost-blogging is unethical. What is missing is any real authority stating that ghost-blogging is unethical in violation of Rules 7.1 and 8.4 apart from the opinions of bloggers who don’t like the idea of ghost-written blogs.

I have not found any disciplinary or advisory ethics opinions in any state that say ghost-blogging for attorneys is unethical. And, given that ghost blogging for lawyers has been an off and on controversy for nearly a decade now, that is significant. I did find two opinions, one official and one unofficial, that come close. The first is a somewhat confusing “unofficial” ethics opinion, written not by a state bar committee but by a Virginia Bar Ethics Counsel for use at a conference lecture in Virginia. This was posted online in 2013 by a blogger on Ride the Lightning, a blog about digital forensics and information technology. The opinion, which is not based on a fact-specific hypothetical such as a bar opinion would have been, at best suggests that ghost-blogging for a lawyer by a non-lawyer would be unethical without a disclaimer, concluding:

Lawyers may understandably be too busy to create their own marketing ideas, statements and claims and certainly have good reasons to engage a marketing professional to assist them with web page and blog content. Provided there is honesty or transparency in the means by which this is done, there is nothing improper about using the work product of another.

The author is James McCauley, a self-proclaimed legal ethics guru who was also a blogger himself at the Ethics Guru Blog.

The only published opinion I have found that comes close is 2008 Formal Ethics Opinion 14 from North Carolina, which states that it is permissible to use briefs written by other attorneys, associates, or pulled from brief banks with or without attribution, but that it is not ethical to use “canned” newsletter content without attribution.

Given the feelings of many legit and respected old-school bloggers about the issue, you would think that lawyers have had grievances filed against them for using ghost-bloggers. Yet I have not found a single reported instance of using a ghost-writer as misconduct. I would also hope that one of the many attorney bloggers who were accusing others of misconduct has at least requested an advisory opinion from their state bar. Yet I have also not found any advisory opinions in any states, which means: 1) No one has ever asked a state bar for an advisory opinion; 2) People have requested advisory opinions and the ethics committees have declined to provide an opinion; or 3) People have requested advisory opinions and received an un-published advisory opinion that allowed the practice.

I have yet to see a rational argument for how a ghost-written blog, whether the ghost-writer is an attorney or non-attorney, violates Rules 7.1 or 8.4 simply because it is ghost-written. If you are aware of any formal published or unpublished ethics opinions or any disciplinary opinions dealing with ghost-written blogs anywhere in the country, please share them.

Is Ghost-Blogging Ethical?

Several legal bloggers that I have known or known of for a long time and whose opinions I respect have, at one time or another, written about their opinion that using a ghost writer for an attorney’s blog is unethical. The list includes Mark Bennett, Brian Tannebaum, and Scott Greenfield, all of whom have expressed their disdain for the ghost-written blog. I respect, appreciate, and disagree with their opinions.

A ghost-written blog post, written by a lawyer or non-lawyer, where the client collaborates, approves, and adopts the content, posted with or without attribution, does not violate the ethics rules in any state simply because it is ghost-written. It could, however, violate the ethics rules depending on the content of the blog post and whether the writing is reviewed and revised before publication. If the person who is writing content for your website or blog does not understand or does not care about the ethics rules, and you are not reviewing and revising the content before it is published, you are asking for trouble.

What are the Applicable Rules of Professional Conduct?

Most bloggers who raised this issue in 2010 and 2014 pointed to Rules 7.1 and 8.4 of the Rules of Professional Conduct. Bloggers cited other bloggers who also cited Rules 7.1 and 8.4 to support their conclusion that ghost-blogging for attorneys is per-se unethical. Attorney-bloggers who do not use ghost-bloggers came down on the side of condemning the practice, while mostly non-attorney ghost-bloggers and marketers came to its defense. What do the rules actually prohibit?

Rule 7.1 (using the ABA’s Model Rules, which are identical or similar to most if not all states), “communications regarding a lawyer’s services,” states that:

A lawyer shall not make a false or misleading 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.

The relevant portion of Rule 8.4, “misconduct,” states that:

It is professional misconduct for a lawyer to:

. . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . .

How do Rules 7.1 and 8.4 Apply to Ghost-Bloggers?

The content that an attorney puts on their website, blog, or any publication must not be a false or misleading communication about the lawyer or the lawyer’s services. It must not contain a material misrepresentation of fact or law. A lawyer must not engage in dishonesty, fraud, deceit, or misrepresentation. Furthermore, Rules 7.1 and 8.4 must be read in conjunction with the other Rules, including Rule 5.3, “responsibilities regarding non-lawyer assistance:”

With respect to a nonlawyer employed or retained by or associated with a lawyer:

. . . b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

This means that if content published by an attorney violates Rules 7.1, 8.4, or any other ethics rule, it does not matter who wrote the content – the attorney is responsible. For this reason alone, an attorney who uses a ghost-blogger needs to be involved in the process with input into the content of blog posts and needs to review, edit, and approve blog posts before they are published.

Lawyers constantly use content that is written by third parties, with and without attribution. Judges employ their law clerks or the attorneys involved in a case to draft orders and other documents, which the judge then signs without attribution. A judge does read, review, revise, and adopt the language of the order as his or her own when they sign it. Lawyers routinely have other lawyers or non-lawyers draft pleadings for them before signing the pleading without attribution. They also read, review, revise, and adopt the language of the pleadings before signing and filing them. Lawyers use ghost-writers to write books that they then publish without attribution. Lawyers have their office staff draft letters and send emails on their behalf without attribution. Lawyers have companies draft the content for their websites and publish them on their behalf without attribution. I could go on.

If an attorney uses a ghost-writer (law clerk, paralegal) to perform any of the above functions and then files a pleading or publishes a document without reviewing it first, they are obviously subjecting themselves to potential ethical issues. The use of a ghost-writer does not violate any ethics rule although the content that is published might. The same applies to ghost-written blog posts – if anyone says otherwise, ask them to show you an ethics advisory or disciplinary opinion from any state in the U.S. that directly supports their position. Considering that this has been a hotly debated issue (non-issue?) among bloggers for over ten years now, the silence from every state’s bar speaks volumes.