In today’s marketplace, having a strong social media presence is essential. These days, a law firm website is the bare minimum and only the first step in establishing a professional brand. Social media, or platforms for online interactions, include blogging and networking tools such as LinkedIn, Google+, Twitter and Facebook. While an online presence can translate into positive business development, it also requires increased vigilance and careful consideration of the ethical implications. One potentially problematic trend is “ghost blogging.”
Ghost blogs are created by writers hired to pen content for their client’s blog anonymously. Although various professions utilize ghost bloggers in an effort to increase their credibility and professional brand, attorneys should tread carefully. You may ask, what’s the big deal? The N.C. State Bar already allows attorneys to ghost write pleadings for clients appearing prose without disclosure to the court or opposing counsel. 2008 Formal Ethics Opinion 3 (2009). It is also commonplace for an associate attorney to draft a pleading for a partner to sign, or a law firm to outsource brief writing to independent drafters. The reason for the distinction between blogging and legal document drafting is not simply because one is a form of advertising and the other is not.
Think about what you are doing when you sign a pleading. First, you are making an appearance. By signing your name, you are notifying the court that you represent the client in the court proceeding. Second, you are taking responsibility for the pleading’s contents, irrespective of who drafted it. No attorney insures that information contained in the pleading is completely accurate, nor must we have personal knowledge of the facts asserted. But you and the draft er collectively must have at least conducted reasonably diligent inquiry before filing. Once you sign the pleading, however, you accept responsibility – both professionally and legally – for the contents. Third, a pleading sets forth only the client’s position. The lawyer does not make a personal assertion or attestation by signing a pleading. Fourth, the identity of the signor ordinarily is not material to the merits of a matter. For the above reasons, there is nothing misleading about signing a pleading written by another or drafting a pleading for another to sign.
What about when you post a blog? If you post an educational blog on workers’ compensation law, for example, you intend to convey your personal knowledge or expertise in a particular practice area. A blog enhances your credibility, highlights your expertise, and solidifies your professional brand. Presumably, you have personal knowledge of the subject and experience in the field of law. These attributes are what a good blog conveys to the public. It becomes clear, then, that having someone else write the blog, with no participation from the disclosed author, especially on an unfamiliar legal topic, could be misleading under the Rules of Professional Conduct.
Why would you have someone else write your blog? Perhaps it’s a lack of time. Some attorneys seem perpetually too busy to market themselves. Other attorneys, while good writers, do not believe they write in a compelling, engaging or entertaining fashion. Certainly, they don’t want to bore their readers to death.
So, can you have someone ghost write your blog? Ultimately, it’s the level of collaboration that makes the difference in answering this question. The more involved you are in formulating the ultimate message and crafting the final product, the less likely there will be an ethical breach in publishing the blog with your name. At a minimum, the blog should be about a matter in which you already have expertise or experience. If you practice workers’ compensation law, you have a good working knowledge of topics in this field and can more readily supervise, edit and verify the contents of any draft. By contrast, if you are a family lawyer, and you plan to blog on developments in personal injury law to expand your practice, then you should be doing the legwork and research for the published blog. Otherwise, the blog could give the false impression that you have knowledge in an area in which you do not.
Although the Rules of Professional Conduct do not specifically prohibit ghost blogging, they do prohibit false and misleading communications to the public about legal services. Rule 7.1. The Ethics Committee has opined that similar conduct is misleading and therefore prohibited if, at the heart of it, you are hiring someone to pretend to be you, or are simply buying legal content to publish under your name. 2008 Formal Ethics Opinion 14, Opinion #6. Less clear is what level of collaboration would be permissible in the eyes of the State Bar or under what circumstances the inclusion of an appropriate disclaimer may be enough. Deanna Brocker and Doug Brocker