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

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.

Lawyer Advertising Rules Challenged in Federal Court

On August 3, 2009, U.S. District Court Judge Martin L.C. Feldman issued an order and reasons ruling on cross motions for summary judgment. Judge Feldman's order upheld most of the challenged provisions of the Louisiana advertising rules scheduled to go into effect on October 1, 2009, while also denying the defendants' motion to dismiss. Washington D.C.-based Public Citizen, Inc. and lawyers Morris Bart, William N. Gee III and Scott G. Wolfe, Jr. sued the Louisiana Attorney Disciplinary Board, its chair and its chief disciplinary counsel to block enforcement of the Rules claiming that they were unconstitutional.

Citing the U.S. Supreme Court in Edenfield v. Fane, the Court stated, "The State may not by scatter-shot condemn lawyer advertising, but does indeed have a substantial interest in addressing the ethical standards of the profession, as well as in preventing public confusion or deception."In its 39-page Order, the Court upheld:

Rule 7.2 (c) (1) (D) - References to Testimonials of Past ResultsThe Court stated that "reference to past results, even if truthful,...could... be inherently misleading."

Rule 7.2 (c) (1) (E) - Communications that Promise ResultsThe Court said "prohibition of communications that promise results regulates only speech that is inherently misleading."

Rule 7.2 (c) (1) (J) - Portrayal of a Judge or JuryThe Court said it agreed that "portrayal of a judge or jury in an ad is inherently misleading." It further stated "such material simply conveys an untrue message. It is compellingly misleading."

Rule 7.2 (c) (1) (L) - Use of Mottos that State or Imply An Ability to Obtain ResultsThe Court found that this provision "materially advances the State's interest in preventing deception of the public, and is narrowly tailored to achieve those ends."

Rule 7.2 (c) (1) (I) - Non-Authentic ScenesThe Court cited Zauderer, which held that "an advertizer's (sic) rights are adequately protected as long as the disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." The Court stated "such dramatizations are in and of themselves capable of unintended guile or delusion."

Rule 7.2(c)(10) - Disclosures and DisclaimersFurther citing Zauderer, the Court stated that "the written disclaimer requirements of Rule 7.2(c)(10)" do not violate the First Amendment and "this Court believes such disclaimers would have a beneficial purpose."

Rule 7.2(c)(11) and Rule 7.6(c)(3) - Payment by Non-Advertising Lawyer and Electronic Mail CommunicationsThe Court noted that the plaintiffs did not address these Rules in their motion for summary judgment, "thus, their attack does not reach those Rules."

Finding a lack of evidentiary support, Judge Feldman struck down the additional disclosure requirements for a non-lawyer spokesperson under Rule 7.5(b)(2)(C) and also struck down Rule 7.6(d), and Rule 7.7 as it applies to the filing requirements for Internet advertising.

To review the court's order go to this link:

http://www.lsba.org/2007MemberServices/Advert0609/OrderandReasons8-3-09.pdf

Worst Lawyer TV Ad

EZ Divorce Law--A Florida law firm has posted perhaps the most tacky lawyer ad I have witnessed to date. Check it out on YouTube:

http://youtube.com/watch?v=JXiJQVyLelM

Let me know what you think!!