More on Ghostwritten Blogs

Last week I wrote about blogs and ghostwriting.  My post was a response to an article by Edward Poll in this month's Law Practice Today.  Since the issue of ghostwritten blogs is a hot topic these days, I sent Mr. Poll an e-mail, asking if he'd care to share his thoughts on the matter.  Mr. Poll's response to my post appears on his LawBiz Blog, here.

In reply to Mr. Poll's response, I would make three points:

1. Mr. Poll states that "[i]f we had to do everything ourselves, we all would be sole practitioners," and then sets forth a number of situations he feels are analogous to using a ghostblogger.  For me, the question of whether a given type of work may be delegated involves thinking in terms of Expectation, Representation, and Relationship:

Expectation.  Could the client reasonably expect the attorney to do this work?  

Representation.  Did the attorney represent to the client that the attorney would do this work? 

Relationship.  Is the work related to the attorney's substantive law practice, or is it merely procedural?

Let's look at the situations mentioned by Mr. Poll -- I think most of them are distinguishable from the matter of the ghostwritten blog:

"When a rainmaker brings new business into the firm, the work is often done by other lawyers."  The fact that other lawyers are doing the work should be disclosed by the rainmaker, in his engagement letter to the new client and in the invoices to the client (which should show exactly what personnel did what work).  My post made it very clear that, while I think using a ghostwriter for your blog is probably a mistake, my bigger problem is with the failure to disclose the use of a ghostwriter. 

"When lawyers write briefs, frequently those briefs are edited by other lawyers, by secretaries and others."  I would add that associates frequently write entire briefs for the partners who employ them.  Once again, this should be disclosed to the client as discussed above.  If Andy Associate spends 15 hours writing a brief, which Penny Partner then spends 15 minutes reviewing before it's filed, Penny Partner has no business claiming that she wrote the brief.

"When clients pay bills, accounting folks make the deposits."  This is a very strange analogy.  Clients don't care who is depositing their checks -- there's no expectation that the attorney will do this, and it has nothing to do with anything substantive in the representation. 

"When a lawyer or law firm creates a marketing brochure, it is often a professional marketing person or copy writer who develops it --- not the lawyer, but for the approval of the principal lawyer."  This is probably Mr. Poll's best point, but I would argue that there is no expectation that the attorney is writing his or her own marketing copy, and (hopefully) no representation that the attorney did so. 

You could also argue that most marketing has no relationship to anything substantive.  I'd say that's the difference between regular marketing and blogging.  You probably wouldn't ask an attorney to put together a print ad campaign for her firm, but you also wouldn't ask a legal marketer to write blog posts about substantive areas of law. 

2. To me, a more analogous situation to ghostblogging without disclosure would be this one:

Abe Attorney is a solo practitioner who is meeting with an important new potential client.  The potential client asks for writing samples from Abe in his substantive area of practice.  Abe either doesn't have the time or the skills to prepare such writing samples, so he hires Lisa Lawyer to write them for him.   Abe doesn't tell the potential client that the writing samples were written by Lisa. 

I can't describe the above scenario as anything but a fraud perpetuated against the potential client.

3. Having worked at three law firms early in my career, I find it hard to believe that, as a practical matter, "delegating the work doesn't mean abdicating the responsibility."  If an attorney can't spare 15-30 minutes per day to blog, then I doubt the attorney can spare 5-10 (or more) minutes per day to review his ghostwriter's posts before they are put online.  Of course, this goes to the question of how we define responsibility.  Last week it came to light (on Ben Cowgill's Legal Ethics blog, here) that a legal blogger was posting materials supplied by Nolo Press on his blog.  I would presume that Nolo does not allow these materials to be altered or changed by the attorney.  If my presumption is correct, then how can the attorney fulfill his "responsibility"?  Is it sufficient to review (but not alter in any way) the posts he purchases from Nolo?  That strikes me as no different from saying that the attorney's responsibility is fulfilled when he writes the check to Nolo.