Jayne Navarre has a post on “ghost blogging” today, but it conflates the practice with two other types of writing that are less of an issue. Let’s break them apart:
- Ghost-blogging. Professionally written posts for those too busy to regularly blog on their own.
- Ghost-written website content. Professionally written copy on a lawyer’s website.
- Editing. Professional editing of posts or other content written by the attorney whose name is on the blog or website.
Let’s address the last two first. There’s nothing wrong with having a professional write the content on your website. It’s marketing copy, subject to the advertising rules, and there is no pretense that it’s written by the attorney. Editing is an even easier case. We could all use a good editor, and there’s nothing wrong whatsoever with having another set of (usually uncredited) eyes helping us to make our ideas clearer and more incisive.
But then there’s ghost-blogging . . .
Put aside the fact that it’s utterly pointless to have a blog you don’t write yourself. Forget that using third-party content robs you of the relationship-building and becoming-a-better-lawyer benefits offered by writing an actual blog (and to her credit, Jayne agrees with this, noting that blogs “are not the optimal domain a ghostwriter”).
Let’s just address the special ethical issues for attorneys considering having someone else blog under their name. There are two related ethics problems, the first having to do with Model Rule 8.4 and the second having to do with the advertising rules.
You see, there’s a crucial difference between ghost-blogging and other situations – like pleadings, articles and letters – where the labor of other writers may appear under a single lawyer’s byline, and this difference can be summed up in a single phrase: the intent to deceive. An attorney using this method is effectively claiming someone else’s words as their own in order to bolster the attorney’s credibility. That’s textbook deception, and it violates ABA Model Rule 8.4(c), which prohibits “dishonesty, fraud, deceit or misrepresentation.”
Does adding a disclosure of the ghost-blogging to the fine print in the blog’s terms of use solve the problem? No. While so doing may (or may not) address the issue of out-and-out deception, it also concedes the obvious: that the putative “blog” is really just a marketing vehicle cloaked in a put-on veneer of credibility, competence and engagement.
If you’ve read my section on blogging, you’ll know that a proper blog doesn’t fall under the attorney advertising rules as it is not “commercial speech.” However, that safe harbor goes out the window if it turns out you’re paying someone else to create all of that writing under your name in an effort to build your image. What you call a “blog” will be treated as the advertisement that it is – complete with the question of whether any disclaimer can truly cure the deception caused by an attorney claiming thoughts and expression written by others as his or her own.
Bottom line – if you don’t like to write, don’t blog. If you do blog, feel free to follow Jayne’s suggestion and hire an editor. But make sure you write your own damn posts.
I’m a seasoned news media professional with some technology experience, and recently turned licensed lawyer. My natural metier is content, and now legal content writing and editing for other attorneys.
I agree with the ideals expressed on what a blog should be, but I disagree that is how reality has developed. Lawyers, I fear, are notorious at finding ways to have their cake and eat it.
Blogs did originate as form of personal expression, conceived exclusive of advertising.
However, the onslaught of the net blogosphere has obliterated any distinction between simple (unregulated) personal expression and advertising.
The distinction that blogging is not a form of advertising is a mere sophistry, at least where it occurs an any commercial context.
And unfortunately the professions, including law, have been relegated to business class: so lawyers, these days, are mere businessmen, albeit “professionals.” (A problem in itself)
Consequently, everything they do creates their “brand” and informs their “product,” which is their services as a professional. Which means everything they produce and publish, whether online or in print, could be construed to have some impact on the lawyer’s commercial success. With respect to a law professional’s reputation, even blogging on a personal interest rather than a legal subject arguably influences the possibiity of how he is perceived by potential customers, and therefore even that content becomes commercial.
And isn’t that precisely why Avvo and other marketing firms encourage lawyers to publish articles and now blog?
That being the case, I see no difference in ghosting for a legal memorandum or motion brief by a per diem attorney and ghosting for a blog or Web content. In all cases, the lawyer should exercise — I should hope — the same supervision, responsibility, and ownership of the content he signs his name to.
Full Discclosure: I am a consumer of Avvo content, including their frequent Webinars on marketing.
I will close with this question:
Is it indicative that there is no byline on this, the actual blog post page?
Rather, viewers have to go to “About” to find the author.
Were I not familiar with Avvo, the brand, and Mr. King’s blogging interests, I would not necessarily attribute this unsigned content to him. Or should that attribution be to Avvo?
So is this blogging or advertising, or both, as I contend?
Scott, the fact that a blog influences how a lawyer is perceived does not make the blog “commercial.” That’s a well-settled point, and unless a blog goes far in the direction of marketing (a la Horace Hunter) it’s not commercial speech and not subject to attorney advertising rules. See my section above re “Blogging” for more details.
As for bylines, it’s indicative of nothing – 100% of the content on this blog is written by me, so a byline would be redundant.
Thanks for taking the time to comment, Josh. Of course, I know the “settled” legal professional perspective on this, but as a news media professional turned lawyer — in other words, being a long-term outsider having stepped through the looking glass, so to speak — I thought you’d appreciate another perspective, as I always do! And keep those informative social media webinars coming & if I can ever be of service, just shout. Thanks Again!