ghost blogging

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.