A recent survey commissioned by LexisNexis and Vizibility, Inc. revealed that 81% of large law firms are presently using some form of social media for marketing. (You can view the results in infographic form here.) As the number of lawyers venturing out into the unchartered waters of social media continues to grow, so too will the number of modern variations on old-fashioned ethical issues. Consider, for example, the following.
Earlier this week on Real Lawyers Have Blogs, Kevin O’Keefe posed the following question to his readers, “Are ghostwritten lawyer blogs unethical?” The post noted that “[t]he ghostwriting of blogs is apparently becoming the rage for attorneys and law firms,” before ultimately concluding that “a real case can be made that it is misleading and unethical.” I highly recommend reading this piece in its entirety (here).
So what do ghostwritten lawyer blogs have to do with circuit splits? Good question.
In November of last year, the Second Circuit created a circuit split by finding that an attorney in New York did not violate state ethics rules by ghostwriting a pleading for a pro se litigant. See In re Liu, Dkt. No. 09-90006-am (2d Cir. Nov. 22, 2011). The court acknowledged the fact that “a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct.” Id.
These cases include Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam) (noting that ghost-writing pleadings for pro se parties violates Federal Rule of Civil Procedure 11 and ABA Model Code of Professional Responsibility DR 1-102(A)(4)); Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir.1971) (clarifying that briefs "prepared in any substantial part by a member of the bar" must be signed); Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426, 435 (Bankr. D. Mont.1999) (same); Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 885-86 (D. Kan.1997) (discussing the ethical issues that arise from ghostwritten pleadings); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1077 (E.D. Va.1997) (same); United States v. Eleven Vehicles, 966 F.Supp. 361, 367 (E.D. Pa.1997) (same).
More surprising than its decision to create a circuit split over the issue, however, were the sources of authority on which the Second Circuit relied to support its position, which included: (1) “[a] 1987 opinion of the New York City Bar's Committee on Professional and Judicial Ethics,” (2) “a more recent opinion of the ABA's Standing Committee on Ethics and Professional Responsibility,” and (3) a 2010 ethics opinion issued by the Committee on Professional Ethics for the New York County Lawyers' Association. In re Liu, Dkt. No. 09-90006-am. You can read the Second Circuit’s full opinion here.