Blogging can be a cost-effective means of marketing, but when the writing is done by someone other than a lawyer, firms put themselves at risk of potential ethics violations.
So-called “ghost blogging” is a practice bar associations around the country are starting to judge. Most recently, in Virginia, the state bar’s legal ethics counsel encouraged attorneys to heed the “informal consensus” of legal ethicists that using ghost bloggers without a disclaimer could be considered “deceit” or “dishonesty” under the Rules of Professional Conduct.
The conversation is still evolving in Wisconsin. Dean Dietrich, a shareholder, ethics counsel and blogger with Ruder Ware LLSC in Wausau, warned in-state attorneys to “definitely proceed with caution.”
Generally, ghost blogging is defined as someone who is not a lawyer writing for a law firm’s blog. Sometimes, a firm acknowledges that someone other than a lawyer wrote the post; sometimes not.
And dropping a byline isn’t necessarily wrong.
“We all know that lawyers use other people’s words all the time and don’t credit those people,” said Peter Rofes, an ethics professor at Marquette University Law School. “An associate can write a chunk of a brief but, not being a member of the bar, can’t get credit; items go out under the names of partners; law firms have marketing departments; law firms have people acting in their commercials that aren’t them.”
The dangers come from how blog posts are interpreted and how they might be used in the future.
“If all this person is doing is summarizing a 7th Circuit case, a Supreme Court case — law firms do that all the time,” Rofes said. “If someone is keeping opinions out and simply seeking to capture a factual development in the law, it seems to me that then there are minimal potential problems.”
As posts move from factual descriptions to opinions or suggestions, the dangers mount.
In fact, a growing number of lawyers, including some as close as Illinois, have been disciplined for rule violations in blog posts.
“Some lawyers have been way too detailed in describing their activities,” said Dietrich, a former chairman and current vice chair of the State Bar of Wisconsin’s Committee on Professional Ethics, “to the point where the client, even if they hid the name, can be identified by association of the facts. And those lawyers have been disciplined for breaching confidentiality.”
Beyond confidentiality, lawyers also face potential conflicts of interest, since a past post could undercut the interests of current or future clients.
Lawyers who use ghost bloggers also could be accused of misrepresentation, even incompetence, depending on the accuracy – or inaccuracy — of the post.
“That would be hard to argue but it could be done,” Dietrich said.
Disclaimers offer some protection. But often, Dietrich said, it’s not enough to write that a blog does not constitute an attorney-client relationship or is not meant as legal advice.
“Disclaimers are used pretty regularly; I use something like that in my blog,” he said. “But that would not protect you from breach of confidentiality or identifying a client. Those disclaimers are only helpful to avoid the claim that you’ve given legal advice.”
The best way for lawyers to protect themselves is to write their own posts. If that isn’t feasible, Rofes said, attorneys either need to attribute the work to the writer or thoroughly review and even aggressively edit the other writer’s work.
“Oversight will not be enough,” Dietrich said. “It has to be the product of the lawyer.”
For example, he said: “I would not find it a violation of the rules to ask a law clerk or a paralegal to do a draft of a blog that a lawyer would review and modify to become his or her work. But it’s the marketer or the paralegal who writes the blog and it’s not reviewed or corrected by the lawyer or only given a cursory review and put on the website as that lawyer’s work, now you’re bordering on misrepresentation.”
That’s why, marketing tool or not, the risk of blogging, especially with a ghostwriter, is just too great for what many firms see as a glorified community service.
“Somebody I spoke to said, ‘Listen, our job is to represent clients, not to educate the public or even to mediate a conversation. We need to be very careful,’” Rofes said. “And so, yes, proceed with caution. There are real dangers.”
Dolan Media Newswires also contributed to this report.