Ride the Lightning

Is Ghost Blogging Ethical Without a Disclaimer?

August 7, 2013

I was astonished at the argy bargy (love that British term) that erupted when I recently lectured at a conference and tendered my opinion that ghost blogging by an attorney was unethical without a reasonably prominent disclaimer indicating that the attorney had not authored each post. There was such a firestorm that I beat a hasty retreat to my foxhole and wrote Jim McCauley, VSB Bar Counsel, for his opinion. He composed a personal and informal opinion (not an official opinion  of the VSB) which was sent to all the conference attendees, all of whom were Virginia lawyers. As the subject was of such interest to the attorneys at the conference, I thought the opinion was worth sharing and have reprinted it in full below:

IS “GHOST BLOGGING” UNETHICAL: IS IT UNETHICAL FOR ALAWYER TO USE A “GHOST WRITER” TO POST INFORMATION ON THE LAWYER’S BLOG OR WEBSITE?

An emerging practice in marketing professional services onthe Internet is the use of professional marketing agencies that contract tocreate, set up and place content on the professional’s blog that he or she usesto market their professional services. For lawyers, the propriety of using a “ghost blogger” to write and postcontent on the lawyer’s blog is a recent hot topic for legal ethicists.

While other professionals may be permitted to use “ghostbloggers,” the informal consensus is that lawyers may not, primarily because ofthe lawyer advertising rules and rules prohibiting deceit or dishonesty. See Rules 7.1 and 8.4(c). Essentially,holding out another’s work product as one’s own is deceptive. While there is absolutely nothing wrong withusing outside and creative talent to craft a blog, a lawyer that uses a “ghostblogger” without a disclaimer, to publicly advertise the lawyer’s engagementwith and competence in a particular area, violates Rule 7.1’s prohibitionagainst misleading statements or claims in public communications about thelawyer or the lawyer’s services.

Lawyers often use blogs to discuss recent developments inthe law and breaking news in their area of practice. Some lawyers use blogs to provide legalinformation to clients, former clients, potential clients and members of thegeneral public that might be interested in the lawyer’s area of practice. Lawyers that outsource this work to anon-lawyer and do not review their work before it is posted also do a gravedisservice to the members of the public that may visit the lawyer’s blog. When lawyers outsource work or services tonon-lawyers, lawyers have an ethical obligation to ensure that that thenon-lawyer’s conduct or work conforms to the lawyer’s professionalobligations. LEO 1850 (2010). Similarly,when lawyers rely on non-lawyers to develop their marketing over the Internet,lawyers have an ethical duty to review that work product to ensure it iscompliant with the lawyer advertising rules, before it is posted on thelawyer’s blog.

While the lawyer may have paid the “ghost blogger” forpermission to post content on the blog without attribution—thereby ruling out acharge of plagiarism—there remains the risk that without an appropriatedisclaimer or attribution, blog visitors will reasonably assume that that thethoughts and ideas expressed are those of the lawyer’s when in fact that is notthe case. Passing off someone else’swriting or ideas as one’s own, in a marketing vehicle designed to inducepotential clients to hire the lawyer is not only unethical, but a bad way toinitiate a professional relationship that is supposed to be built ontrust.  When the means used to solicitthe client are deceptive, this does not bode well for the ensuing professionalrelationship. Candor and trust areessential characteristics of a lawyer’s practice.

Lawyers may understandably be too busy to create their ownmarketing ideas, statements and claims and certainly have good reasons toengage a marketing professional to assist them with web page and blogcontent. Provided there is honesty ortransparency in the means by which this is done, there is nothing improperabout using the work product of another.

James M. McCauley, VSB Ethics Counsel (July 19, 2013)