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.

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