Comments on: Ghostbusting in the Blogosphere: Is Ghostblogging Unethical & What’s the Best Way to Deal With It?

By: D.C. Criminal Law: Legal Marketing and Blogging | Koehler Law

D.C. Criminal Law: Legal Marketing and Blogging | Koehler Law — Sun, 01 Aug 2010 03:55:51 +0000

[...] Carolyn Elefant, Mark Bennett, Brian Tannebaum, and Eric Turkewitz each have done very thoughtful posts on the topic, and the arguments they make are sound. My wife, who knows a little bit about legal ethics, was horrified to hear me suggest the issue might be debatable. As for calling people out on it, she said exactly what Mark Bennett has been saying: If lawyers themselves don’t regulate the practice, who will? [...]

By: John Beaty

John Beaty — Sun, 07 Feb 2010 14:41:56 +0000

Well, I am not a lawyer. But I am a client (as well as a son, grandson and nephew of lawyers.)
When my lawyer brings me a product, either in process or a final, I assume that he had help/input from his staff and possibly other lawyers from his firm, or even consultations with friends. This is not a problem, as my desire is to have the best possible product that he can provide me. However, if I were to ask him a question about something in the product, and his answer made it clear that he had not closely supervised the writing of the document, I would be very unhappy. I assume that this is the case for most clients, and I believe that this is what you are talking about when you say, “oversee and direct”. However, when he writes me a letter about the work we’re doing, I assume it’s from him, not from his partners, nor from his secretary, unless it’s marked as such. He does send me summaries of conversations he has had, and they are usually from his secretary or an intern, and are clearly marked. To me (and, from brief conversations with a couple of members of my family), blogs are more like letters than like products: personal takes and discussions about points of law.
Lisa’s conclusion doesn’t strike me as either logical nor necessary: what is being discussed is the notion that what you put your name on is yours OR it gets noted as such. Certainly, if I came to understand that the things my lawyer were sending me were not even a product of his firm, I would question why I should not go and hire them instead. equally, if the content of his blog came from some other source, I would not feel comfortable unless he noted it as such.

By: John Beaty

John Beaty — Sun, 07 Feb 2010 14:41:00 +0000

By: Lisa Solomon

Lisa Solomon — Thu, 04 Feb 2010 11:22:49 +0000

An ethical lawyer who uses a ghostblogger will similarly “oversee and provide direction for the research” and writing performed by the ghostblogger.
The logical conclusion of your position is that, unless a lawyer bases an educational marketing activity (which would include such things as seminars for the public and CLEs for colleagues) entirely on work that the lawyer personally performed from scratch, the lawyer is being deceptive, and therefore unethical. That’s a pretty extreme position.
I agree with you that, from a marketing and personal branding perspective, transparency is important. I was addressing the ethics — not the wisdom — of using a ghostwriter.

By: Lisa Solomon

Lisa Solomon — Thu, 04 Feb 2010 11:22:00 +0000

By: Carolyn Elefant

Carolyn Elefant — Thu, 04 Feb 2010 08:19:33 +0000

Lisa,
As you know, I wholeheartedly support the use of contract attorneys. But in most cases, when lawyers work with contract attorneys, they oversee and provide direction for the research. I know that specifically, that when someone like you works with contract attorneys, you try to actively engage them with questions and suggestions about different approaches to take. In that situation, the lawyer has played a part in the final product, if not the actual execution so I see nothing unethical or improper about the lawyer putting his name on the brief.
I didn’t mean to suggest that lawyers who use ghost bloggers should not have a blog at all. I just think they should disclose when others have written the post so it is not deceptive. They don’t even have to say specifically, who wrote it – even a general disclaimer like “some of these posts are written by professional writers” would just make it more straight forward. A commenter sent a link to a copy of a “canned newsletter” that law firms can send it. But the newsletter has a disclaimer. Why can ‘t blogs have that too?
For me, the issue isn’t one of expertise so I would have to give more thought to those points that you raised. Rather, I feel that blogging is a Web 2.0 media – a personal interaction like email or Facebook and it’s because of that (not any implied expertise) that I believe transparency is important.

By: Carolyn Elefant

Carolyn Elefant — Thu, 04 Feb 2010 08:19:00 +0000

By: Lisa Solomon

Lisa Solomon — Wed, 03 Feb 2010 22:08:51 +0000

Carolyn, you know that I agree with almost everything you say (not just in this post, but in general). However, I disagree with your suggestion that, if you hire someone to “ghostblog” for you, under your supervision, you must give the writer a byline. As I read your post, you’re implying that it’s unethical to omit a byline under these circumstances.
As Jenni Buchanan noted on Blog for Profit, “[a]s a business owner, you are responsible for anything and everything that is published under the name of your business; this includes documents, letters, website and blog content, articles, reviews — everything — whether it is written by you, your most trusted research assistant, a ghost writer, or a guest writer.” Every lawyer — as a lawyer, not merely a businessperson — has an ethical responsibility to supervise the employees and independent contractors (including lawyers and nonlawyers) who perform work on his or her behalf.
It’s perfectly ethical for a lawyer to submit to a court, under the lawyer’s own signature, a document (pleading, brief, etc.) written by someone else. By signing a court document drafted by someone else, the lawyer takes full responsibility for the contents of the document, just as, by attaching his or her name to a blog post, the lawyer takes full responsibility for the content of the post.
I also reject the argument that you can’t be an expert on an area of law if you hire someone else to write about it (or perhaps even to research the issues *and* write about them). The lawyers who hire me to research particular issues and draft briefs that will ultimately be filed under their signatures are experts in their areas of practice. Do they know the answer to every legal question that arises? Of course not. Does that make them any less expert in their fields? Of course not. A lawyer may learn about his or her practice area by reading articles/posts written by others – even articles/posts they’ve paid someone to write.
Let’s come at this from another direction: what of the new lawyer who researches and writes all of his or her own blog posts, and is blogging to demonstrate expertise in a chosen practice area? Is *that* lawyer an expert? Most likely not: few new lawyers are experts in their fields. But such a lawyer would get a pass from the ghostblogging critics (assuming, of course, that the lawyer doesn’t make any explicit misrepresentations about his or her expertise).

By: Lisa Solomon

Lisa Solomon — Wed, 03 Feb 2010 22:08:00 +0000

By: Aaron

Aaron — Wed, 03 Feb 2010 14:27:02 +0000

Back in the day, this was an issue with client newsletters. I guess it still is - http://www.abanet.org/publiced/yourlaw/home.html .