Are you afraid of ghosts?

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Published on 3/3/08

Few, if any, of us today expect politicians to write their own speeches or CEOs to write their own shareholder letters. Ghostwriting is a fact of modern communication. But where does that leave lawyers, who are trained to be "wordsmiths" in their profession? The answer seems to depend on the medium — and the message.

Take, for example, the writing of a legal "blawg." I occasionally have stirred up controversy with my assertion that it is perfectly acceptable for busy lawyers to get help starting and maintaining their blogs.

Blogging, in this instance, is done primarily to raise the level of one's credibility for expertise in a given subject — in other words, for business purposes. There is no more need to attribute authorship here than for any other marketing copy used in the promotion of a product or service.

The blawging lawyer, although not always the author, still sets the tone, oversees the ideas and most likely lays out the entire strategy to be highlighted in the blawg. In other words, the concept is the lawyer's even if the specific words are not.

Quite a different issue arises when companies such as PayPerPost, ReviewMe, Loud Launch and pay bloggers from $5 to $20, and sometimes up to $1,000, per blog review of products. I had no problem with this — caveat emptor seems to be the governing principle here — until learning of a law firm that told paid bloggers to "get creative, have fun with your post, and help spread the word" — the "word" being that a birth control patch "was killing and injuring young women."

It is unethical for a law firm to get involved promoting the interests of a political perspective (or client) in this fashion. Lawyers have a higher standard than this.

Then there is the ghostwriting of pleadings. This is an issue that varies by jurisdiction. In California, the rules of court were amended to permit unbundled legal services, whereby an attorney can take on a limited representation of a client for discrete legal projects — the drafting of a single motion, for instance. According to California Rule of Court 3.37, the ghostwriting role does not have to be disclosed.

However, in a recent New Jersey case (Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co. Inc.), a U.S. magistrate judge ruled that, with regard to the writing of pleadings, "undisclosed ghostwriting is not permissible under the current form of the Rules of Professional Conduct in New Jersey."

Specifically, the judge cited violation of Rule 3.3, the "duty of candor," and added that only if New Jersey revises its rules to allow for the regulation of unbundled legal services will their use be acceptable.

Bottom line: In ghostwriting, as in so much else in the legal profession, don't assume. Consult your own jurisdictional rules — and your own sense of propriety.

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