As Halloween draws near, I thought it would be appropriate to bring up the issue of ghost stories. To be more specific, I’m talking about “ghostwriting.”
To say that attorneys are creatures of limited time is to wildly understate the amount of work and pressures we face on a day-to-day basis. Not only must we be masters of prose and the written word in order to maintain successful relationships with our existing clients, but we must also be constantly reaching out to potential clients by offering innovative and valuable expertise that will encourage the public to rely on us as experts in our particular field of law. Because of these time constraints, many lawyers engage ghostwriting services to populate their websites and blogs with new and interesting information.
For most professionals where writing is intrinsically involved in their services, this is a reasonable and necessary course of action that allows them to stay relevant while keeping their clients and prospective clients informed to changes in the marketplace. Unfortunately, we attorneys are not like “most professionals.” In fact, we are bound to a higher standard in the activities and company we keep.
Allow me to draw your attention to the ABA model rule 7.1 “Communication Concerning a Lawyer’s Services.” Under the ABA’s Center for Professional Responsibility, it states the following:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
Ideally, a lawyer who engages a ghostwriter would have the sophistication to review the ghost writer’s work in order to make sure the topics they write on are both materially and factually truthful. However, what lawyers need to consider is the second part of 7.1 which states that if a lawyer omits a material fact, it could potentially render their statements false or misleading.
So, if you do not have a disclaimer that informs the public you are using a ghostwriter, could you potentially run afoul of rule 7.1? I believe the answer to this question is yes.
When an individual hires an attorney, they are essentially purchasing the intellectual property of the attorney’s work product. It is this creative je ne sais quoi that the client relies so much upon and pays so much for that makes an attorney’s service so valuable. A client generally makes the decision to engage an attorney based on many of the intellectual materials that the potential client has seen from the attorney; this could include their website, recommendations from other attorneys or clients, or even blogs like the one you’re reading here.
Therefore, engaging a ghostwriter without informing readers that someone else is providing your content unequivocally creates a misleading impression that what they are reading is the effervescence of your personal legal mind.
Now, I know many will argue that lawyers generally don’t write their briefs or pleadings and their opinions are almost always written by paralegals and other staff – so why should ghostwritten blogs and website content be any different? Consider this: blog posts and website content are considered by many to be a form of content marketing and advertising. While it is a form of legal work product, it is pointedly a message about a lawyer’s services and thus inextricably linked to rule 7.1.
For those of you out there who lament that maintaining your own content will reduce your amount of billables: I commiserate. I often carve out more time than I should to produce my own content, but there’s something incredibly satisfying when I see it published on the Internet and know that my voice is genuinely my own.
Writing your own blog posts and website content is definitely not something you should be scared of this Halloween. In any event, it will keep rule 7.1 from haunting you in the future.