ethics

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.