Ghostwriting, Ghostblawging and Ghostbusting

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Via an August 2nd, 2011 press release from the University of Toronto-Faculty of Law Blog: Academics fronting ghostwritten medical journal articles as ‘guest authors’ should be charged with fraud, say UofT law professors:

Ghostwriting and guest authoring in industry-controlled research raise ‘serious ethical and legal concerns, bearing on integrity of medical research and scientific evidence used in legal disputes’

Here is the SSRN abstract to the article by Professors Simon Stern and Trudo Lemmens (University of Toronto-Faculty of Law) entitled “Legal Remedies for Medical Ghostwriting: Imposing Fraud Liability on Guest Authors of Ghostwritten Articles”:

Ghostwriting and guest authorship of medical journal articles raise serious ethical and legal concerns, bearing on the integrity of medical research and evidence used in legal disputes. Ghostwriting involves undisclosed authorship, usually by medical communications agencies or a pharmaceutical sponsor of the published research; guest authorship involves taking authorial credit for the published work without making a substantial contribution to it.

Commentators have objected to these practices because of concerns involving bias in ghostwritten clinical trial reports and review articles. We also note the effects of ghostwritten articles on questions involving the legal admissibility of scientific evidence. Efforts to curb ghostwriting practices, undertaken by medical journals, academic institutions, and professional disciplinary bodies, have thus far had little success and show little promise.These organizations have had difficulty adopting and enforcing effective sanctions, for specific reasons relating to the interests and competencies of each kind of organization.

Because of those shortcomings, a useful deterrent in curbing the practice may be achieved through the imposition of legal liability on the ‘guest authors’ who lend their names to ghostwritten articles. We explore the doctrinal grounds on which such articles might be characterized as fraudulent. A guest author’s claim for credit of an article written by someone else constitutes legal fraud, and may give rise to claims that could be pursued in a class action based on the Racketeer Influenced and Corrupt Organizations Act (RICO). The same fraud could support claims of “fraud on the court” against a pharmaceutical company that has used ghostwritten articles in litigation. This doctrine has been used by the U.S. Supreme Court to impose sanctions on the authors and corporate sponsors of a ghostwritten article. We discuss the potential penalties associated with each of these varieties of fraud.

Summary Points

  • Ghostwriting of medical journal articles raises serious ethical and legal concerns, bearing on the integrity of medical research and scientific evidence used in legal disputes.
  • Medical journals, academic institutions, and professional disciplinary bodies have thus far failed to enforce effective sanctions.
  • The practice of ghostwriting could be deterred more effectively through the imposition of legal liability on the ‘‘guest authors’’ who lend their names to ghostwritten articles.
  • We argue that a guest author’s claim for credit of an article written by someone else constitutes legal fraud, and may give rise to claims that could be pursued in a class action based on the Racketeer Influenced and Corrupt Organizations Act (RICO).
  • The same fraud could support claims of ‘‘fraud on the court’’ against a pharmaceutical company that has used ghostwritten articles in litigation. This claim also appropriately reflects the negative impact of ghostwriting on the legal system.

Full article: in PLoS Medecine or on SSRN.

Author bios: http://uoft.me/sstern and http://uoft.me/tlemmens

PLoS Medicine: http://www.plosmedicine.org

Funding: The research is supported by a grant from the Social Sciences and Humanities Research Council on The Promotion of Integrity in Biomedical Research.

The legal and ethical implications for the medical profession and medical academia are far-reaching.  The issues of legal ghostwriting (law school term papers, court documents for pro per litigants, CLE papers for senior attorneys, etc.) and ghostblawging (H/T Scott H. Greenfield and Mark W. Bennett) have previously evoked strong reactions and comments among the blawgosphere.

Perhaps ironically, a post attributed to Dr. Mohan Dewan and V. C. Mathews, Advocates with R. K. Dewan & Co. Intellectual Property Rights Protection Lawyers, “Does Plagiarism Or Ghostwriting Amount To Copyright Infringement?” itself appears to have been plagiarized elsewhere.

For a contrary view that ghostblawging is an acceptable practice see, Kevin O’Keefe’s Real Lawyers Have Blogs: Ghostwriting for law blogs? and Allison C. Shields’ Legal Ease Blog: Should you use a ghostwriter for your blog?

If you don’t have any professional or ethical concerns with legal  ghostwriting or ghostblawging and are too busy to spend 15 minutes of your precious time to write your own original posts, then I suppose you have already consulted with Janet Ellen Raasch at Constant Content.  According to the About Page:

About

A constant stream of good content — with your name on it and appearing in skillfully targeted electronic and print media – is one of the most effective ways to enhance your reputation as a professional — and get new business.

Janet Ellen Raasch is an experienced independent writer who helps professional service providers reach — and persuade — their ideal clients through creation of by-lined content for the Internet, and copy for traditional print media.

In particular, Raasch produces content and copy for lawyers, law firms, consultants to the legal industry and legal organizations (including ABA, CBA, LMA and ALA). Because she has been an in-house legal marketing director as well as a consultant, her content and copy is written with your unique marketing agenda in mind. She is one of the best-known independent writers in this market segment.

Janet Ellen Raasch is an accomplished journalist who has written and ghostwritten more than 1,000 articles for electronic and print publication (see “writing samples”). In addition, she has written and ghostwritten more than a dozen books and numerous white papers (see “writing samples”). She has created keyword-rich content for more than a dozen Web sites.

Wow! Over 1,000 ghostwritten articles. It seems to me that ghostwriting and ghostblawging are symptomatic of what Scott Greenfield has referred to as  a ‘race-to-the-bottom’ in the legal profession.

Yet, whenever I read comments from law marketers, I am left with the ineluctable impression that I am suffering from a form of confirmation bias and fundamental attribution error. Perhaps I am really a concern troll. Rather than writing about flawging—as I and fellow blawgers Charon QC and Brian Inkster recently have done— maybe we should openly embrace and promote all forms of content in the blawgosphere, or what Mark Bennett has aptly coined as the “Happysphere”. Why can’t we—lawyers and legal marketers— all just get along?

Of course, it does seem highly hypocritical to promote the “personal branding” mantra as a means of authentic engagement, while also saying that ghostwriting or ghostblawging is acceptable. If your blawging is part of your personal brand, then how can someone else be writing your blog posts for you?

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4 Responses to “Ghostwriting, Ghostblawging and Ghostbusting”

  1. Ted Folkman Says:

    Antonin,

    Re your point about “Perhaps I am really a concern troll”: I think the question you should ask yourself is whether you enjoy writing about the issues of professionalism that have taken up a lot of your attention recently. Is it fulfilling for you? I don’t know if you share this view, but I blog mostly for the opportunity to engage in issues that I find interesting and for personal fulfillment. Yes, we all have an obligation to seek to improve our profession and to promote high standards. Speaking purely for myself, though, I think life is too short to make that a main focus of my blogging and writing energies. But that’s just my two cents.

  2. Antonin I. Pribetic Says:

    Ted,

    Thanks for your comment. The statement was rhetorical. Yes, I am fulfilled by writing about professionalism and ethics. Your blog is a firm blawg and you are at liberty to write about what ever you find interesting and personally fulfilling. My blog is a personal blawg. I write about what matters to me personally from a lawyer’s perspective.

  3. Ted Folkman Says:

    Thanks, Antonin. So since you’re happy writing about what you write about, carry on!

    Question: how do you define “firm blog”? I consider my blog to be a personal project, not a firm project, though I have a link to my firm bio in my “About” page and a logo in the sidebar. Some blogs that I read regulalry are clearly firm blogs (Louis Solomon’s blog is a good example), while at the other extreme your blog doesn’t seem to mention your firm at all. There seems to be a spectrum, and I don’t know where to draw the line, or whether it matters if there is a line.

  4. Antonin I. Pribetic Says:

    Whether yours is a personal blawg or a firm blawg is not for me to decide. As long as it’s not a flawg, I will continue to read it.

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