Unless their local jurisdiction says otherwise, a lawyer’s ghostwritten marketing content is likely to pass ethical muster if they are involved in the drafting process.
There are a number of reasons why busy lawyers turn to ghostwriters to help them create and publish marketing content—like blog posts, bylined articles, and client alerts—under their own names.
One reason, as I just alluded to, is that lawyers are busy and very rarely in a position to create the content they know they should be creating in order to bolster their marketing and business development efforts.
Another reason is that every minute a lawyer spends on marketing their practice is a minute they are not spending on their clients’ matters which means they cannot bill those clients for that time.
Another reason, which few lawyers and commentators dare speak of, is that lawyers may not write marketing content as well and as persuasively as they write their motions, briefs, memoranda, and letters to opposing counsel. After all, writing for past, present, and future clients and referral sources requires a different skill set than writing for judges, their clerks, and opposing counsel.
More and more lawyers realize that these hurdles to their ability to consistently market themselves and their practices are not going away anytime soon. Nor, unfortunately, is their need to engage in those marketing efforts. If anything, as the legal marketplace becomes more competitive with more lawyers and more lawyer-replacing technology, the need for lawyers to effectively market themselves only intensifies.
More and more lawyers are coming to understand that relying on ghostwriters—either colleagues at their law firms or outside writers—to create and publish content under those lawyers’ names allows the lawyers to market themselves no matter how busy they are, while staying billable, through written content that they are happy to attach their names to.
(One great thing about ghostwriters is that if a ghostwriter is doing their job well, no one will suspect that a lawyer did not actually write a piece of marketing content with their name on it.)
But like everything else lawyers do, they must ensure that they are following their jurisdictions’ rules of professional conduct when using ghostwriters.
When it comes to the ethics of lawyers using ghostwriters to assist with creating marketing content, there is a lot of commentary out there that comes down firmly on either the “Ethically bad” side or the “Not an ethics issue at all” side. As with most things in life, the answer is a bit more nuanced.
Below, I suggest two steps you should take to consider whether working with a ghostwriter could cause an ethics issue for you. And, I explain why a particular ghostwriting arrangement is unlikely to cause ethics issues.
(Before I go any further, I am obliged to mention that I am most definitely not providing you legal advice here in the form of guidance on complying with your local rules of professional conduct. I am simply giving you general information about the ethics of lawyers using ghostwriters.)
Step One: Determine whether your marketing content would be considered a communication subject to your local rules of professional conduct regarding advertising.
Much of the commentary floating around the web suggesting that ghostwriting can pose an ethics problem assumes that marketing content is always subject to the rules of professional conduct, notably (ABA Model) Rule of Professional Conduct 7.1. That rule states:
Information About Legal Services
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.
Some people might tell you that if a lawyer used a ghostwriter to create and publish marketing content under the lawyer’s own name, that content could run afoul of Rule 7.1 (or the lawyer’s jurisdiction’s local equivalent) because it is both false and misleading for a lawyer to claim to have written something that they did not actually write.
I’ll tackle the substance of that argument a little later. But before I do, I must address the assumption being made in that last paragraph: that Rule 7.1 applies to every piece of marketing content.
That assumption is wrong. Some jurisdictions do not consider certain marketing content to automatically fall under Rule 7.1.
Take California for example. In 2016, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion number 2016–196. The opinion tackled the following question: “Under what circumstances is ‘blogging’ by an attorney a ‘communication’ subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising?”
In the opinion, the committee concluded:
- “Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.”
- “A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.”
- “A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.”
- “A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.”
Applying what the California Bar says about blog posts to other forms of legal marketing content, it stands to reason that any marketing content that does not reside on a law firm’s website would not be subject to ethics rules regarding advertising unless it expresses the attorney’s availability for professional employment.
So before a lawyer accepts the idea that working with a ghostwriter to create and publish marketing content (like thought-leadership marketing content such as blog posts, bylined articles, and client alerts) under their own name will run afoul of their jurisdiction’s local rules of professional conduct, they need to see what their jurisdiction has to say about whether such communications are even subject to the ethics rules.
Step Two: The more control over the final product you have when working with a ghostwriter, the less likely you probably are to run afoul of ethics rules.
Let’s assume that your jurisdiction is silent on whether legal marketing content like thought-leadership marketing content is not subject to your jurisdiction’s ethics rules regarding advertising. You should probably operate under the assumption that such content is subject to those rules.
At that point, it is time to look at the relationship you have or will have with your ghostwriter.
There are typically two kinds of ghostwriting relationships lawyers and law firms enter into.
The fully outsourced option
In the first, the ghostwriter handles the conceptualization, creation, and publication of marketing without input from the lawyer. You would hire this ghostwriter or their company to create, for example, blog posts about dog bite laws in your state or what to do if you are in a car accident.
They would write that content and publish it—under your name—directly to your law firm’s blog, your firm’s social media accounts, within a newsletter, or somewhere else.
In this situation, you could run into an issue under Rule 7.1 if there is a suggestion or explicit statement claiming that you wrote that piece of content. You had no role in doing so, and to claim otherwise is probably false or misleading.
If you look closely at some law firms’ websites, you will see how they are able to (likely) avoid any ethics issues when they employ these kinds of ghostwriters. You may see blog posts on those firms’ sites that are attributed to “On behalf of [the law firm]” instead of to an actual lawyer. In this case, a truthful statement is being made about the authorship of that piece of content: It was written by someone else for that law firm.
So this first kind of ghostwriting, call it the “fully outsourced option,” could pose an ethics issue for lawyers who claim authorship of the ghostwritten content.
The collaborative option
The second kind of ghostwriting, call it the “collaborative option,” appears unlikely to cause the same kind of potential ethics issues that the fully outsourced option could cause.
The collaborative option, which I always suggest to clients is the better of the two options, tends to be of interest to non-consumer-facing law firms like medium-sized and large corporate firms.
Under the collaborative option, lawyers already have ideas in mind for their marketing content. Perhaps it is a bylined article for a legal trade publication or an industry trade publication, or an in-depth blog post about a recent court decision or administrative agency action. They just need help getting those ideas onto paper in polished form.
So in this situation, the lawyer and the ghostwriter collaborate on the content. They will talk about the topic and what themes or messages the lawyer wants the content to convey. The lawyer might send the ghostwriter a rough outline or some materials the ghostwriter will need to read before writing the content. Then, the ghostwriter goes off and writes the content. Finally, the lawyer will review a draft of the ghostwriter’s work and provide feedback, if needed, and eventually approve the piece of content for publication.
With this approach, it is probably unlikely that the lawyer will run into any ethical issues. That’s because the lawyer is involved in the conceptualizing and drafting phases. They had a vision for the content and they instructed the ghostwriter on the direction they want the piece to go. The lawyer is providing feedback and perhaps edits to the piece. And, of course, their final “OK” is necessary before the content is published. The ghostwriter’s task is to make the overall points the lawyer wanted to make through research and a logical and cogent presentation of facts and arguments that engages the reader.
Does this collaborative approach to ghostwriting sound familiar?
It is practically the mirror image of when a law firm partner responsible for filing a pleading or motion with a court assigns the research and drafting of that court filing to an associate. The partner is providing the big ideas and themes and has final say over the filing, but the associate is responsible for bringing those ideas and themes to life and creating the document that will be filed. This process is used by virtually all law firms in existence that have more than one lawyer on staff. I am not aware of any ethics issues raised by this process.
When employing the collaborative approach to ghostwriting, it is unlikely that a lawyer putting their name on a piece of content that was collaboratively created would be engaging in false or misleading conduct under Rule 7.1 (assuming the lawyer’s jurisdiction deemed this kind of thought-leadership content subject to that rule). The lawyer is exerting full control over the process. They are just delegating one part of the process, the writing, to another person over whom they maintain control.
Ethics matter, but don’t overlook the bigger picture
With the caveat that I am, again, not providing you in this post legal advice as to the rules of professional conduct in your jurisdiction, I think it is unlikely that a lawyer who collaborates with a ghostwriter in the manner described above will run afoul of their local ethical rules by doing so.
(Obviously, you should make sure your local jurisdiction does not explicitly or implicitly suggest the opposite.)
For that reason, if you are considering using an internal or external ghostwriter to help you draft your legal marketing content, including thought-leadership marketing content, you cannot be successful if you simply focus on the ethics of doing so. Once you are reasonably sure a collaborative ghostwriting process passes ethical muster in your jurisdiction, you must turn your attention to the bigger ghostwriting picture and answer important questions like:
- Will your ghostwriter be an internal colleague or an outside writer?
- Are they a lawyer or otherwise knowledgable enough about the law to keep you from having to spoon feed them the raw material that they will mold into polished marketing content?
- Are they talented enough that they can consistently write thoughtful but engaging content regarding complex topics?
- Will they produce the kind of content, without multiple rounds of revisions, to which you would be happy to attach your name?
- Do you have a strategy for the kind of content you will be creating?
- Do you know who you will be targeting with your content?
While ethics compliance is an important piece of any law firm marketing effort, you would be wise to make sure you don’t lose sight of the content marketing/thought-leadership marketing forest for the ghostwriting ethics trees.
Bottom line: Unless their local jurisdiction says otherwise, a lawyer’s ghostwritten marketing content is likely to pass ethical muster if they are involved in the drafting process.
Wayne Pollock is the founder of Copo Strategies, a legal services and communications firm, and the Law Firm Editorial Service, a ghostwriting service for lawyers and their law firms. The Law Firm Editorial Service crafts BigLaw-quality lawyer-written thought-leadership marketing content for lawyers so that they can market themselves while staying billable.
Do you have any idea how much revenue your law firm is missing out on by its lawyers writing their own blog posts, bylined articles, and client alerts? Visit WriteLessBillMore.com for instant access to a free Law Firm Thought-Leadership Cost Calculator.