Image courtesy of sharscornr

Ghost blogging has exploded across the internet marketing scene. For many lawyers, hiring a professional writing service is the favorite way to produce the kind of regular quality content that today’s increasingly socialized web presence demands. The rapid rise of legal ghost blogging has driven a spike in the number and types of service providers. Some lawyers, however, are pushing back against the rapid rise in legal ghost blogging by arguing that the practice is ethically flawed.

In a recent podcast, hosts Sharon D. Nelson and Jim Calloway talk about the ethical considerations of legal ghost blogging with attorney and marketing expert Kevin O’Keefe. All three panelists decry the practice on both ethical and practical grounds, passionately arguing that legal ghost blogging is a material misrepresentation in advertising and damages the attorney-client relationship by undermining the natural trust that a good blog can establish between a lawyer and their readers. Unfortunately, the podcast conflates the question of ethics with more basic concerns about quality marketing and thereby misses an opportunity to educate lawyers about the proper management of professional writing services for practice marketing – a perfectly legitimate method of building an online legal presence.

While Nelson et. al. are correct in their argument that most state rules governing professional conduct among lawyers demand honesty in lawyer advertising, they over extend the concept by too broadly applying it to the world of legal ghost blogging. By their own admission, none of the three has heard of a single case or complaint in any state addressing the ethics of ghost blogging in a legal setting. The dearth of legal opinions on the topic strongly suggests that their concerns about the practice are better directed at the quality and effectiveness of legal marketing rather than at any underlying ethical snags related to legal ghost blogging itself.
Their primary ethical critique is that the publication by a lawyer, of material originally written by someone other than that lawyer, is a material misrepresentation. Their supporting argument is that lawyers who publish material they did not write themselves are claiming competency in an area of the law in which they are not, in fact, competent. Both arguments are non-sequiturs. If a lawyer publishes a blog entry on a topic with which that lawyer is unfamiliar, and therein claims subject matter competency on that topic, that lawyer is legally on the hook (malpractice comes to mind) for the content. It does not matter who wrote the material. A lawyer who writes a misleading blog post with his own pen is as guilty of a false representation as the lawyer who buys the blog post from a writing service. The author of the material is generally irrelevant; only the quality and accuracy of the article really matter.
There are, of course, always going to be questions about the quality of a purchased blog post. Lawyers are undeniably on the hook for the legal advice they give as well as for publishing misleading or false advertising materials. Ghost written blog posts, which misrepresent either the law or an attorney’s skill, are clearly problematic (as are the same articles written directly by the publishing lawyer). Furthermore, from a web marketing perspective, some tactics are ineffective or even self-defeating. For example, a lawyer who buys content from a service which syndicates the same material to multiple clients is setting themselves up for disaster (yes, this actually happens and we all cringe, writers and lawyers alike). Lawyers who publish blog articles on topics with which they are unfamiliar are exposing themselves to malpractice liability, and lawyers who avoid the interactive world of social media – which goes hand-in-hand with blogging – are doing themselves a disfavor by missing out on the awesome networking opportunities provided by those interactions. But none of these warnings support the argument that ghost blogging about legal topics is inherently unethical – done right, it’s not.