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 A LAWYER TO USE A “GHOST WRITER” TO POST INFORMATION ON THE LAWYER’S BLOG OR WEB SITE?
An emerging practice in marketing professional services on the Internet is the use of professional marketing agencies that contract to create, set up and place content on the professional’s blog that he or she uses to market their professional services. For lawyers, the propriety of using a “ghost blogger” to write and post content on the lawyer’s blog is a recent hot topic for legal ethicists.
While other professionals may be permitted to use “ghost bloggers,” the informal consensus is that lawyers may not, primarily because of the 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 with using outside and creative talent to craft a blog, a lawyer that uses a “ghost blogger” without a disclaimer, to publicly advertise the lawyer’s engagement with and competence in a particular area, violates Rule 7.1’s prohibition against misleading statements or claims in public communications about the lawyer or the lawyer’s services.
Lawyers often use blogs to discuss recent developments in the law and breaking news in their area of practice. Some lawyers use blogs to provide legal information to clients, former clients, potential clients and members of the general public that might be interested in the lawyer’s area of practice. Lawyers that outsource this work to a non-lawyer and do not review their work before it is posted also do a grave disservice to the members of the public that may visit the lawyer’s blog. When lawyers outsource work or services to non-lawyers, lawyers have an ethical obligation to ensure that that the non-lawyer’s conduct or work conforms to the lawyer’s professional obligations. 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 is compliant with the lawyer advertising rules, before it is posted on the lawyer’s blog.
While the lawyer may have paid the “ghost blogger” for permission to post content on the blog without attribution—thereby ruling out a charge of plagiarism—there remains the risk that without an appropriate disclaimer or attribution, blog visitors will reasonably assume that that the thoughts and ideas expressed are those of the lawyer’s when in fact that is not the case. Passing off someone else’s writing or ideas as one’s own, in a marketing vehicle designed to induce potential clients to hire the lawyer is not only unethical, but a bad way to initiate a professional relationship that is supposed to be built on trust. When the means used to solicit the client are deceptive, this does not bode well for the ensuing professional relationship. Candor and trust are essential characteristics of a lawyer’s practice.
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.
James M. McCauley, VSB Ethics Counsel (July 19, 2013)