I read a thought-provoking article by Jayne Navarre (blogger of Virtual Marketing Officer) on the advantages of hiring a ghost-writer for legal content. Ms. Navarre’s article argued that ghost-writing in general is an ethical practice. This got me thinking about ghost-writing for legal blogs. Because I write all my own shtick, the ethics component was most interesting to me.

My ethics wheels started spinning and spurred a lively twitter debate with some true heavy hitters in the field including Ms. Navarre herself.

Click here to view table.

Click here to view table.

I ended up aligning with the majority to conclude ghost-blogging does raise ethical concerns.

But a question by Kevin O’Keefe (founder of LexBlog, Inc.) stuck with me: “What is the best way to test this theory?”

Click here to view table.

Kevin’s thought? Reporting an attorney through the disciplinary process.

Because reporting is scary, I thought of petitioning for an advisory opinion. (They are non-binding and I am a squirrely attorney after all.)

Typically advisory opinions are issued when a supplied question raises a serious concern to the profession. Ghost-blogging has its pros and cons, but does it raise a serious enough concern that we—members of the bar—should find out what an advisory opinion would say? (Cue fear in ghost-bloggers everywhere.)

But before the juicy stuff, a brief summary of the ethics of ghost-blogging.

What are We Talking About?

The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.

What is the Problem?

Misrepresentation is the problem. As Josh King (General Counsel and Vice President, Business Development for Avvo and author of Socially Awkward – Social Media + The Law of Legal Marketingcorrectly identifies two ethical rules are in play when an attorney pays for ghost-blogging – 7.1 and 8.4.

Advertising Rules

First are the advertising rules. Although there is debate over the extent to which the First Amendment protectsattorneys’ 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 point – ghost-blogging violates Prof.Cond.R. 7.1. The Ohio Rule 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.

Let’s talk about why it is misleading. Slapping an attorney’s name on a blog post he or she did not write is a misrepresentation about the attorney. Kevin O’Keefe appears to agree. He points out via blog post:

A reasonable person would presume a blog written by a newspaper columnist was written by the columnist.

And a reasonable person would presume that a blog presented as written by lawyer was written by the lawyer.”

So common sense rules here. You’re claiming authorship of something you didn’t author – a misrepresentation of fact.

If you don’t buy that, the author line switch can also be a misleading communication about the lawyer’s services, including the 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.

General Prohibition on Misrepresentation

The second ethical problem is the general prohibition of misrepresentation. In relevant part, Ohio Prof.Cond.R. 8.4(c) provides: “It is 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).

Sorry lazy attorneys.

Who Cares?

A quick scan of the blogosphere reveals that most attorneys agree that this practice violates the ethical rules and many marketing pros believe no blog is better than a ghost-written one. Yet here we are still discussing the matter. I think this is because attorneys are busy and many are not buying into the blogosphere. Most firms have blogs just to have one or to keep up with competitors. Thus, ghost-writers are in high demand and very useful to a subset of attorneys and firms. You can view the entire conversation previously mentioned on the Ohio Legal Ethics Twitter feed.

Should We Do Something About It?

The ethical nature of ghost-blogging has been discussed, but let’s go one step further:

  • Does ghost-blogging pose a significant concern to the profession?
  • Is the misrepresentative nature of ghost-blogging sufficient to prohibit it?
  • Is there any value gained by non-attorneys writing content consumed by those who believe the named attorney wrote it?
  • Is some flow of information—albeit from a less-qualified source—better than none?
  • Would supervision over ghost-bloggers (as required for other non-attorney employees) cure these concerns?