Is "Ghostblogging" Ethical For Lawyers?

IS “GHOST BLOGGING” UNETHICAL: IS IT UNETHICAL FOR A LAWYER TO USE A “GHOST WRITER” TO POST INFORMATION ON THE LAWYER’S BLOG OR WEB SITE?
An emerging practice in marketing professional services on the Internet is the use of professional marketing agencies that contract to create, set up and place content on the professional’s blog that he or she uses to market their professional services. For lawyers, the propriety of using a “ghost blogger” to write and post content on the lawyer’s blog is a recent hot topic for legal ethicists.
While other professionals may be permitted to use “ghost bloggers,” the informal consensus is that lawyers may not, primarily because of the lawyer advertising rules and rules prohibiting deceit or dishonesty. See Rules 7.1 and 8.4(c). Essentially, holding out another’s work product as one’s own is deceptive. While there is absolutely nothing wrong with using outside and creative talent to craft a blog, a lawyer that uses a “ghost blogger” without a disclaimer, to publicly advertise the lawyer’s engagement with and competence in a particular area, violates Rule 7.1’s prohibition against misleading statements or claims in public communications about the lawyer or the lawyer’s services.
Lawyers often use blogs to discuss recent developments in the law and breaking news in their area of practice. Some lawyers use blogs to provide legal information to clients, former clients, potential clients and members of the general public that might be interested in the lawyer’s area of practice. Lawyers that outsource this work to a non-lawyer and do not review their work before it is posted also do a grave disservice to the members of the public that may visit the lawyer’s blog. When lawyers outsource work or services to non-lawyers, lawyers have an ethical obligation to ensure that that the non-lawyer’s conduct or work conforms to the lawyer’s professional obligations. LEO 1850 (2010). Similarly, when lawyers rely on non-lawyers to develop their marketing over the Internet, lawyers have an ethical duty to review that work product to ensure it is compliant with the lawyer advertising rules, before it is posted on the lawyer’s blog.

While the lawyer may have paid the “ghost blogger” for permission to post content on the blog without attribution—thereby ruling out a charge of plagiarism—there remains the risk that without an appropriate disclaimer or attribution, blog visitors will reasonably assume that that the thoughts and ideas expressed are those of the lawyer’s when in fact that is not the case. Passing off someone else’s writing or ideas as one’s own, in a marketing vehicle designed to induce potential clients to hire the lawyer is not only unethical, but a bad way to initiate a professional relationship that is supposed to be built on trust.  When the means used to solicit the client are deceptive, this does not bode well for the ensuing professional relationship. Candor and trust are essential characteristics of a lawyer’s practice.

Lawyers may understandably be too busy to create their own marketing ideas, statements and claims and certainly have good reasons to engage a marketing professional to assist them with web page and blog content. Provided there is honesty or transparency in the means by which this is done, there is nothing improper about using the work product of another.

James M. McCauley, VSB Ethics Counsel (July 19, 2013)

Changes to Lawyer Advertising Rules Approved by the Supreme Court of Virginia Effective July 1, 2013

by James M. McCauley, Ethics Counsel

Effective July 1, 2013, the Supreme Court of Virginia has approved amendments to Rules 7.1-7.5 of the Rules of Professional Conduct. The amendments move specific examples of lawyer advertising statements or claims from the body of rules to the comment sections. They also remove unnecessary and redundant language.
Here is how the approved amendments change the current rules.

• The terms “fraudulent” and “deceptive” are removed from Rule 7.1. A communication that is “false or misleading” violates the rule.
• The disclaimer required for advertising specific or cumulative case results has been removed from Rule 7.2—which has been eliminated in its entirety—and is now Rule 7.1(b). The disclaimer shall:
  • (i) put the case results in a context that is not misleading; (ii) state that case results depend upon a variety of factors unique to each case; and (iii) further state that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.
  • The disclaimer shall precede the communication of the case results.
  • When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.
• Other than specific or cumulative case results, examples of statements or claims considered to be “false or misleading” have been taken out of Rule 7.1 and placed in the comments. Former subparagraphs (1)-(4) were deleted.
• Comment [1] to Rule 7.1 was substantially rewritten to describe the types of communications subject to regulation under Rule 7.1and to exclude other forms of non-commercial speech.
• Rule 7.2 was eliminated in its entirety, although the specific and cumulative case results disclaimer requirement is now Rule 7.1(b) and provisions in Rule 7.2 regulating written solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.
• Rule 7.3 addresses in-person and written solicitation of potential clients. The amendments to Rule 7.3 remove the current per se prohibition of in-person solicitation in personal injury and wrongful death cases. Effective July 1, 2013, in-person and written solicitation will be improper only if:
  • the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or
  • the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.
• Rule 7.3 also regulates payment or rewards to persons for recommending employment, prohibiting a lawyer from giving anything of value to a referral source except that the lawyer may:
  • pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1;
  • pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service (note that the lawyer referral service must be a non-profit entity);
  • pay for a law practice in accordance with Rule 1.17; and
  • give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer's services.
• Rule 7.3’s regulation of written solicitations has been simplified with regard to the “ADVERTISING MATERIAL” labeling requirement.
• Rule 7.4 regulates claims of specialization and expertise and the current rule is substantially unchanged by the amendments.
• Rule 7.5 is substantially unchanged with the exception of a new Comment [3] that states that lawyers should practice using the official name under which they are licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia. The lawyer’s use of a name other than the lawyer's name on record with the Virginia State Bar may be a misleading communication about the lawyer's services to the public in violation of Rule 7.1.http://www.courts.state.va.us/courts/scv/amendments/2013_0415_rules_7_1_7_5.pdf

Legal Ethics--It's complicated

Many lawyers believe that they can conduct a law practice ethically following their sense of what is morally "the right thing to do."  Relying on what their mother taught them and the "smell test" they think that ethical matters can be handled intuitively.  Of course, lying, cheating and stealing are obvious ethical breaches, but legal ethics has evolved into a body of law as complex as civil procedure and other courses law students take.  Some of the rules are counter-intuitive.  Not long ago I attended a marketing seminar for lawyers where the speaker, a lawyer, proudly spoke of her practice of sending small gifts as "tokens of appreciation" to persons that brought clients to her firm.  The Virginia Rules of Professional Conduct prohibit this and I had the CLE sponsor sent a message out to the attendees bringing this to their attention.  See Va. Rule 7.3(d).

Recently I took a call from a lawyer that wanted to move to disqualfy a law firm that was adverse to the caller's client and had recently hired an associate from a very large firm.  The associate's former law firm had represented the caller's client in a related matter while the associate worked there.  The associate was not even aware that the caller's client had been a client of his former law firm, had no knowledge of the matter handled by his former law firm nor any personal involvement.  I informed the caller that there was no conflict of interest and no basis to file a motion to disqualfiy the firm.  He responded, "Really?  That can't be right."  I explained that conflicts are imputed under Rule 1.10 to other lawyers associated in a law firm, but the rules are different when lawyer move between firms.

More examples can be cited but the bottom line is that lawyers have to read, understand and know the rules and they cannot "go with their gut."

Lawyers Need to be Aware of Fake Reviews

I did an interview for the ABA Journal that was published in August 2012.  See ABA Journal, August 2012 at pp. 24-25.  The topic of interest was the discovery of several incidents of online reviews of lawyers and law firms purporting to have been written by clients.  Random Google searches of firms revealed "five star" reviews of various law firms created by persons who claimed to be clients of the law firm.  Contacting the reviewers for verification is not possible.  Google has acknowledged that bogus reviews are a problem but Google does not create reviews.  Lawyers who hire marketing firms to boost their image and ratings online must ensure that the consultant is not using improper or deceptive practices, including manufacturing fake reviews about the quality of the lawyer's services.  In the interview, I advise that lawyers who advertise and use the Internet to marker their services have an ethical duty to periodically Google their name and see what's out there.  Lawyers should be monitoring and policing what others say about them.

Bad Ethics Rules that Need to be Incinerated!

This is a 6 min presentation  on YouTube by Will Hornsby on some of the most ridiculous ethics rules adopted in some states:

http://www.youtube.com/watch?v=dqo_2JwzgUc&list=PLF236BD0804ED6416&index=5&feature=plcp

Enjoy.

ABA Nixes Proposal to Allow Non-Lawyers to Own Law Firms

ABA COMMISSION ON ETHICS 20/20 WILL NOT PROPOSE CHANGES TO ABA POLICY PROHIBITING NONLAWYER OWNERSHIP OF LAW FIRMS CHICAGO, April 16, 2012-At its April 12-13 meeting in Washington, D.C., the ABA Commission on Ethics 20/20 decided not to propose changes to ABA policy prohibiting nonlawyer ownership of law firms.


Co-Chairs Jamie S. Gorelick and Michael Traynor said, "Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures. Based on the commission's extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms."

By June 2011, the commission had publicly rejected certain forms of nonlawyer ownership that some other countries currently permit, including multidisciplinary practices, publicly traded law firms, and passive, outside nonlawyer investment or ownership in law firms.

After further consideration and study, on Dec. 2, 2011, the commission released for comment a discussion draft describing a limited form of court-regulated, nonlawyer ownership of law firms. It would have allowed nonlawyers, who were employed by a law firm and assisted the firm's lawyers in the provision of legal services, to have a minority financial interest in the firm and share in its profits. The discussion draft reflected an approach that was similar to but more restrictive than the structure permitted by the District of Columbia for more than 20 years.

"The commission considered the pros and cons, including thoughtful comments that the changes recommended in the discussion draft were both too modest and too expansive, and concluded that the case had not been made for proceeding even with a form of nonlawyer ownership that is more limited than the D.C. model," Gorelick and Traynor said.

Although it will not propose any changes to ABA policy on nonlawyer ownership of law firms, the commission will continue to consider how to provide practical guidance about choice of law problems that are arising because some jurisdictions, including the District of Columbia and a growing number of foreign jurisdictions, permit nonlawyer ownership of law firms.

"These are current problems that need pragmatic attention," Gorelick and Traynor said. "The commission previously released draft proposals on these issues, and will decide at its October 2012 meeting whether to submit formal proposals to the ABA House of Delegates for consideration in February 2013. Meanwhile, the commission welcomes additional comments on the previously released drafts."

The ABA Commission on Ethics 20/20 was created in 2009 and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.

Members of the commission include judges, law professors who specialize in legal ethics, practitioners (including former ABA, state bar and local bar presidents), and liaison members from the ABA Board of Governors, Center for Professional Responsibility, Task Force on International Trade in Legal Services, Standing Committee on Ethics and Professional Responsibility, and Young Lawyers Division.

Co-chair Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Co-chair Traynor, of Berkeley, Calif., is a past president of the American Law Institute and currently chairs the institute's council.

The Nursery Rhyme Lawyer

Have you ever wondered what would happen if Jack and Jill or Humpty Dumpty sued for their personal injuries?  Call the Nursery Rhyme Lawyer!  Click on this link to hear his song:

http://video.thebillablehour.com/video/Throwing-Toasters-performs-Nurs#

Most significant changes in the practice of law

A timely article in this week's issue (9/5/11) of the Virginia Lawyers Weekly (Dolan Publishing Co.), celebrating its 25th "Silver Anniversary" as a paper, covered interviews of prominent lawyers in our state who were asked to identify the most significant changes in the practice of law: Marketing and specialization, commercialization, and a substantial decline in jury trials were the top three.

New Rule 1.18 Adopted by Supreme Court of Virginia

The Virginia State Bar's Standing Committee on Legal Ethics proposed that the Court adopt ABA MR 1.18 and the Court has adopted this rule effective June 21, 2011.  Rule 1.18 addresses the ethical duties owed to a  prospective client with whom a lawyer has communicated but has not agreed to represent that person.  A prospective client is a person with whom the lawyer is willing to discuss the possibility of employment.  The comments to the rule make clear that not all unilateral communications with a lawyer are protected, only those communications had with a reasonable expectation of forming a client-lawyer relationship.  In that case, the communications are protected under the lawyer's duty of confidentiality under Rule 1.6, and the lawyer who has received significantly harmful information from a prosepective client may not represent a client adverse to that prospective client.  However, the imputation of this conflict can be avoided if the tainted lawyer is screened from participating in any matter adverse to the prospective client and timely notice is given.  It is believed that this new rule will help mitigate the practice by some people of "lawyer shopping" solely for the purpose of strategically disqualifying the lawyer or law firm because of an interview or other contact.  At the very least the new rule should help law firms avoid an imputed disqualification when one of its lawyers has some communication with a prospective client.

Casey Anthony . . . Get Over it, people!

The public lynching of Casey Anthony, her lawyer, Jose Baez (a/k/a "sleazeball defense lawyer") and the jury that sat through this trial is despicable and needs to stop.  Guilty as Casey Anthony may appear to the general public, the jury did its job correctly by acquitting her of murder because the government did not have a case.  Her lawyer did what he was supposed to do and so did the jury.  How about complaining about the prosecutor for putting on a case that needed more investigation and work?  The sad part about all of this bloodlust for Casey Anthony in the media is that these same people would want the same criminal justice system to work for them if their life or libery was on the line.  Finding Casey Anthony guilty of first degree murder on the flimsy evidence the prosecution had would be a travesty and miscarriage of justice, even assuming she committed the crime.  The answer is for the police and prosecution to prepare their case before bringing it to trial, not bashing the defense or the jury on the perception that Casey Anthony "got away with murder."  We cannot disregard or begrudge the constitution, burden of proof and procedure safeguards afforded any citizen charged with a crime just because we don't like the result in a highly publicized case.  Let's put things in perspective and get over it, folks.

New Rule Encourages Pro Bono Work By Corporate Counsel

The Supreme Court of Virginia approved April 15, 2011, effectively immediately, a proposed amendment to Supreme Court Rule 1A:5, Corporate Counsel & Corporate Counsel Registrants, which allows Virginia corporate counsel admitted in States other than Virginia to do pro bono work. This proposal came at the recommendation of the Joint Virginia State Bar and Virginia Bar Association Corporate Counsel Pro Bono Task Force (Task Force), with the hope of increasing the number of lawyers eligible to provide pro bono public services while ensuring that such lawyers are subject to adequate professional guidelines regarding competence in the handling of such matters.


The approved changes also revise paragraph (g) of the rule in three respects: (1) removes the requirement for Part I corporate counsel registrants to participate only in pro bono programs operated and controlled by any Virginia licensed Legal Aid Society; (2) removes the requirement that the Part I corporate counsel work under the “direct supervision” of a legal aid lawyer or a pro bono volunteer who is a regular active member of the Virginia State Bar; and (3) removes limitations on the specific services that can be performed by the corporate counsel volunteer. These changes broaden the scope of appropriate pro bono legal services for specific clients over other legal aid services, thereby creating additional opportunities for pro bono services for Part I corporate counsel. Even though the approved changes eliminate the provisions in the Rule pertaining to supervision, Part I corporate counsel are required by Rule 1.1, like all lawyers who practice law in Virginia, to serve their clients competently and have an ethical duty to make sure they received proper and sufficient training to handle a pro bono matter.

New Article Published on Lawyer Websites and Blogs

The April 2011 issue of The Virginia Lawyer has my latest article on lawyer websites and blogs and the ethics issues that arise out of their use.  Check it out!

http://www.vsb.org/docs/valawyermagazine/vl0411-consultus.pdf

New Article Published on Cloud Computing

"Cloud Computing--Silver Lining or Ethical Thunderstorm for Lawyers" is published in The Virginia Lawyer (Feb. 2011)

Check it out!

http://www.vsb.org/docs/valawyermagazine/vl0211_consultus.pdf

Proposed Florida Bar Opinion Requires Lawyers to Scrub Hard Drives

A recent proposed advisory opinion by the Florida Bar warns lawyers of their ethical duty to see that old hard drives are sanitized to protect client information from falling into the hands of unauthorized third parties.  See Proposed Opinion 10-2 (Sept 24, 2010) found at http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/04F704C626B79C2E852577AB006FD349/$FILE/10-02%20PAO.pdf?OpenElement

Hard drives or memory sticks are used in copying and fax machines as well as computers.  Lawyers that lease copiers or dispose of these machines without sanitizing the hard drive leave client information vulneralble to the mischief of third parties that mine and harvest such information to commit identity theft.  The proposed opinion would require lawyers to obtan assurances from third party vendors that the hard drive will be sanitized to protect client information.

It remains to be seen how a lawyer can exercise control over third party vendors and whether lawyers should be disciplined for failing to obtain that assurance from the vendor.  For example, what assurance can a lawyer get when he asks a hotel clerk to make copies of a client's documents?  ABA Model Rule 5.3 was not written to address a lawyer's responsibility for conduct of non-lawyers that are not under the direct supervisory authority of the lawyer.  This is why ethical breaches by persons to whom a task or matter has been outsourced by a lawyer, and the outsourcing lawyer's exposure under Rule 5.1 or 5.3 is a problematic issue.  A lawyer does not exercise supervisory authority over third parties not employed by the lawyer or his/her firm.

The opinion also raises a question whether lawyers should be subject to discipline if a third party finds the lawyer's laptop, flash drive, cell phone or other device containing client information that is not encrypted or password protected.  While it is one thing to advise lawyers on best practices regarding the use of technology, it is an entirely different matter to hold a lawyer subject to discipline for not adopting these best practices.

It will be interesting to see how this opinion reads when it is finally  adopted.

Prosecutors May Advise Police to Communicate with Represented Defendant

Effective November 1, 2010, the Supreme Court of Virginia approved the Virginia State Bar’s Rule 4.2 Task Force’s proposed amendment to Comment [5] of Rule 4.2 of the Rules of Professional Conduct to address the situation in which a defendant who is in custody, formally charged, and represented by counsel waives his rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present.


The question addressed by the task force was: “If the law enforcement officer seeks legal advice from a commonwealth’s attorney regarding whether the officer may obtain a statement from the defendant under these circumstances, may the commonwealth’s attorney advise the police officer without violating Rule 4.2?

Rule 4.2 had previously prohibited a lawyer from communicating with a person the lawyer knew to be represented by counsel unless the counsel for the represented person consented or the communication was authorized by law.

Rule 8.4 (a) states that a lawyer cannot violate a professional rule through the agency or actions of another. A reading of the rule led to the conclusion that the commonwealth’s attorney could not ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer.

The task force determined that the defendant’s waiver of his right to have his lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the commonwealth’s attorney should be permitted to give advice without fear of violating the cited rules. The amendment to Rule 4.2, Comment [5] clarifies that the commonwealth’s attorney can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The amendment to Comment [5] does not, however, authorize the commonwealth’s attorney to script or mastermind the police’s interrogation of the defendant.

California Bar Goes After Prosecutors for Misconduct

The California state bar discipline process, led by recently-appointed Chief Trial Counsel Jim Towery, is investigating 130 prosecutors who had been identified in a report by the Innocence Project and Santa Clara University law professors on instances of wrongful conviction.  It is not known how far these cases will go back, but this is a rather significant development in the field of lawyer regulation.

Access Virginia State Bar's Ethics Hotline By E-Mail

Lawyers may now access the Virginia State Bar's Legal Ethics Hotline via e-mail simply by clicking on a blue button.  Here is a link to that page:  http://www.vsb.org/site/regulation/ethics/

This will help reduce the "phone tag" on the traditional phone service.  To reach the hotline by phone and request legal ethics advice dial 804-775-0564.

Members Can Download Legal Forms at VSB Website

Virginia Bar members may now fill out and download many routine pleadings and forms.  To get to the forms, log in as a VSB member.  Click on the “Forms and Downloads” button which takes the user to a page with a “Supreme Court of Virginia Forms” heading at the bottom.


The Supreme Court website has a link to some of the same forms, but most of the forms on the Supreme Court site are ones that must be signed by a pro se litigant or an attorney.

Prosecutors in Daryl Atkins Case Face Disciplinary Charges

Two lawyers involved with the prosecution of the famous capital murder case against Daryl Atkins face charges of misconduct alleging that they coached a co-defendant witness and withheld exculpatory information from the lawyers defending Atkins.  To read more follow this link--

http://valawyersweekly.com/blog/2010/03/15/york-prosecutors-face-bar-discipline/

Payee Notification Bill Withdrawn

In this session of the General Assembly, the Virginia State Bar asked Senator Norment to put a bill before the legislature that would require insurance companies to notify a claimant or plaintiff that a settlement check has been sent to the claimant's or plaintiff's lawyer.  Insurance companies typically send settlement checks directly to the claimant's lawyer, payable jointly to the client and the lawyer.  This procedure allows the lawyer to protect his or her lien on the settlement proceeds.  Because the insurer typically does not communicate with a represented claimant, including when it sends a settlement check to the claimant's lawyer, a dishonest lawyer can steal the client's portion of the settlement by forging the client's signature and settle the client's claim with the insurance company without the client's knowledge or consent.  Stephen Conrad, a now disbarred lawyer who practiced in Woodbridge, Virginia, is estimated to have stolen millions of dollars from personal injury clients whose cases he settled without their knowledge.  A dishonest lawyer will stall the client by lying about the status of the client's case so the client is deceived into thinking the case is still pending.  The victims of these thefts usually cannot succeed in getting the fraudulent settlements set aside because the insurance company has the right to rely on the apparent authority of the lawyer to settle the client's case.  The client's only recourse then is to make a claim against the client protection fund, but the Fund limits payment to $50,000 for losses incurred on or after July 1, 2000.

Experience has shown that these problems are substantially reduced in states that have adopted payee notification laws like the proposed bill introduced in the Virginia General Assembly this session.  The ABA has a Model Payee notification rule--which is not part of the Model Rules of Professional Conduct, that simply requires the insurer, when making payment in excess of a threshold amount (such as more than $5000) in settlement of third party liability claim, to send a written notice to the claimant that a settlement check has been sent to their lawyer.

The Virginia Trial Lawyers Association objected to the bill (SB 511) submitted on behalf of the Virginia State Bar and contacted the Chief Justice of the Supreme Court of Virginia, who in turn requested that the bar withdraw its bill from consideration by the General Assembly this session.  Chief Justice Hassell, in a conference call with VSB Executive Director Karen Gould, and VTLA Executive Director Jack Harris, advised that this decision was made with unanimity among the justices at the Court.  The Chief Justice said he wants to discuss the issue at a meeting with representatives from 17 statewide bar groups that he generally convenes once a year.  HB 511 passed the Senate by a vote of 38 to 2 and crossed over to the House where it was stricken from the docket by the Commerce and Labor Committee on March 2, 2010.  A similar bill, HB 738, was introduced by Del. Albo on behalf of the VTLA but the bill never made it out of the Courts of Justice Committee in the House.

Hopefully, the powers that be will see the wisdom of this measure--to protect clients and third parties from lawyers stealing their funds--and get this law on the books before another Stephen Conrad comes along.  Critics of the bill, particularly personal injury lawyers, voice the concern that the proposed bill would invite insurance company reps to communicate directly with their client and would create mischief.  This concern was easily addressed by language included in HB 738 that stated "No other information is authorized by this section to be communicated orally or in writing to such a claimant by a payer."