Lawyer Blog Ghostwriting Unethical? You've Got to be Kidding!

There's recently been opinions expressed online that ghostwriting lawyer blogs is unethical. My (this blog's editor's) initial response - "you've got be kidding!" Effectiveness may be debated (I think that clearly depends on the research and writing talent of the ghostwriter, the oversight of the attributed author, and the objective of the blog) -- but unethical??? I strongly beg to differ, and instead submit that ghostwriting lawyer blog posts is nothing more than a legitimate new twist on a time-honored tradition in the legal profession (mostly driven by the practical need to efficiently manage heavy workloads by delegating).*

For example, the New York Times has noted that the opinions of most federal appellate judges are written by their clerks. While the author of that article was disturbed by this fact (calling it a "crisis"), I highly doubt that anyone would seriously recommend censuring the majority of federal appellate judges for misconduct. To the contrary, federal appellate judges are highly respected and considered some of the brightest legal minds in the country; they didnt' secure their prestigious judgeships by being slouches.

By the same token, at the largest and most prestigious law firms in the country, junior associates generally research and write briefs and law journal articles for senior partners. And a junior lawyer at one firm typically drafts complaints or motion papers into which are inserted the names of senior attorneys at multiple other law firms serving as co-counsel on the relevant case. I have never heard of lawyers being sanctioned for these practices.

I think the reason why judges and senior partners are not regularly disciplined for using junior colleagues to handle their research and writing is that no one thinks it's an issue. Rather, everyone understands that such practices are de rigueur because the senior folks are simply way too busy handling other senior-level tasks to undertake the very time-consuming process of researching all of the relevant facts and legal issues pertinent to a judicial opinion, legal brief, or law journal article, and crafting all that raw material into persuasive prose. So they delegate the task to their junior colleagues.

Why should ghostwriting lawyer blog posts be treated any differently? It shouldn't be.

Instead, when it comes to drafting a judicial opinion, brief or blog post, what's more important than authorship is responsibility. That is, by putting their name on an opinion, brief or blog post drafted by a junior colleague, the senior person assumes responsibility for its content - good or bad - whether he or she wrote it or not. Authorship thus becomes irrelevant because if there's an issue with the content, the person with their name on it (not the drafter) takes the heat.

And because putting one's name to a document means taking responsibility, any lawyer publishing content under their name written by somebody else would be well-advised to review the draft before publication for errors, diction, syntax, etc., and make appropriate edits. That's just common sense - you don't publish something under your name without first reviewing it whether it's an opinion, brief or blog post.

But just because a senior person merely reviewed and edited an opinion, brief or blog post - instead of actually researching and writing it - it doesn't translate that he or she has commited an ethical violation (of course, plagiarism - the culpable act of passing off someone else's content as one's own without the permission of the author - is an entirely different matter that is deserving of censure and liability).

Ultimately, I find that the primary motive for most lawyers who retain ghostwriters for their blogs is that they are extremely busy, and must prioritize taking care of their clients (as well as spending time with their loved ones). Yet, such busy lawyers still want to grow their practices, and for them, ghostwriting their blog posts - subject to their review and revision - is a viable, appropriate and ethical strategy to secure the benefits of blogging.

In closing, I would be remiss if I didn't provide links to arguments advanced by the other side. See here, here and here.

Without delving into and trying to rebut all of the arguments on the other side, I'd simply make the following three points:

#1 - many of the arguments derived from the language in certain ethical rules could just as easily be leveled against judges who have clerks write their judicial opinions and senior partners who have junior associates write their briefs or law journal articles. As noted above, no one is hauling judges and senior partners before ethics committees on the grounds that such practices are "false and misleading;" lawyers who retain ghostwriters for their blogs should not be inconsistently held to a different standard. Whatever the technical import of the quoted language in certain disciplinary rules, as a practical matter, everyone understands that the above practices is not what such language is aiming at.

#2 - calling lawyers who retain ghostwriters for their blogs "lazy" is ludicrous. Such lawyers are hiring ghostwriters not because they are twiddling their thumbs and sipping martinis poolside, but because they are extremely busy with client matters. One doesn't secure a roster of clients that keeps one busy day and night through sloth. Rather, such lawyers are ambitious and want to secure the business benefits of blogging without sacrificing their obligations to their clients. And maybe they also want a personal life (e.g., eating dinner with the family, spending time with the kids, catching a movie or concert with a signficiant other) rather than spending another 2-3 hours in front of a computer screen when they can hire someone else competent to handle the time-consuming task of research and writing, and then review, edit and publish.

#3 - perhaps the strongest argument against "ghostwriting" is that a blog should represent the "personal voice" of the attributed author. Preliminarily, that's an "effectiveness" argument, not a question of ethics. So it doesn't help the folks who claim ghostwriting is unethical under bar rules. In any event, I think the effectiveness of a "personal voice" depends on the objective of the blog. For "niche" blogs covering specialized areas of the law that aim primarily to, say, educate readers about new court decisions on a relevant topic, I don't see why a ghostwriter with a strong legal research and writing background can't do that effectively for a lawyer simply too busy to do all the spadework. On the other hand, for a lawyer who desires a certain tone that only he or she can reproduce consistently, a ghostwriter won't work. But the situation is no different with the courts - judges with a unique judicial voice, like Judge Richard Posner, write their own opinions precisely because they desire a consistent tone across all of their opinions.

Happy to take comments!

*[Editor note: the opening paragraph of this blog was substantially revised several hours after the post's initial publication after a reader observed that my strong feelings about the subject matter initially slanted my "opening statement" too heavily towards ad hominem; I should also add that this post was NOT ghostwritten in case anyone was wondering based on the initial use of the pronouns "we" and "our"].

Comments

[Virtual Marketing Officer]

Joshua, Thanks for bringing further light on to this topic. You make valid points. In fact, two of your links point to both Kevin O'Keefe's blog and Kailee Goold's post on Ohio Legal Ethics, which were in response to an earlier conversation on this topic that I started on my blog in June 2014 - http://virtualmarketingofficer.com/2014/06/23/ghostwriter-that-is-unethical-says-the-law-firm-marketing-director-to-the-ghost/
As a content specialist for law firms, I write a variety of content, including blog posts, but I don't "author" any of it. And yes, in every case the lawyer/author reviews, revises or blesses it before it goes live. Works well for them. I can honestly say NONE of the ghosting I've done has been for lazy lawyers. As you point out, in fact it is just the opposite. Finally, voice is important. Many times when I write for lawyers I interview them on the topic. I take copious notes and listen to their voice. A good ghostwriter is able to pick up that tone and replicate it. After I published my post, I was frankly surprised that many responded negatively. I think if you ask those *busy* lawyers that use the services of a writer/editor, they would be very positive and not the least bit worried about the process violating any ethics. Just my experience...

[emonlinemedia]

Jayne - hi, thank you for your comment. I too was extremely surprised to see blog ghostwriting challenged as unethical. I'm usually able to see both sides of an argument, but here, honestly, I just cannot understand the logic of the other side given the pervasive utilization in the legal profession of junior colleagues to write judicial opinions, briefs, motions, articles, letters, etc. on which senior folks sign off.