Tomorrow, the ABA will post its ethic Opinion 10-457 (August 5, 2010) on ethics issues related to lawyers use of websites. OK, so the decision comes a good fifteen years after lawyers, myself included, first started using the web, but better late than never, I suppose. In any event, the opinion was circulated this afternoon on the Ethics Commission 2020 listserve, with a warning from ABA staff counsel not to post it publicly due to copyright restrictions. Though I considered posting the Opinion at my site in an act of civil disobedience, in deference to the Ethics 2020 listserve, I will abide by counsel’s wishes. However, I couldn’t let this matter pass without a letter to the listserve, which I’m reprinting below:
Thank you for sharing with the group ABA Opinion 10-457 (August 5, 2010) on lawyers’ use of websites. While I’m glad that the opinion will be available tomorrow on the ABA website, I cannot abide the copyright restrictions that govern ABA decisions. By cloaking its ethics opinions in opaque copyright wrappings, the ABA is impeding lawyers from complying with our ethics obligations and stymying discourse and debate over appropriate ethics standards for our profession as we move at the speed of light through the twenty-first century.
The ABA’s decision to make the ABA decision available at its site does not cure the underlying copyright issues. The ABA makes the decisions available for a limited time only before moving them behind a pay wall. Consider the ABA’s controversial Opinion 08-451 on legal outsourcing issued back in February 2008, which I attempted to post about here. I wasn’t able to because initially, the ABA did not make the decision available for free. Thereafter, the ABA did briefly release the decision publicly, but today it has been returned to its vault, accessible only fora fee. The opinion spawned widespread and robust debate throughout the blogosphere, but the conversation no longer has a context because the links to the ABA’s decision no longer work.
Even joining the ABA is no solution. Heartened by the ABA’s efforts to reach out to solos and small firms, I actually forked over $250 plus to join. Yet, even as an ABA Member, I can only access ethics decisions for no cost for up to a year after they issue; after that, I too must take my turn in the ticket line.
In any event, making access to ethics opinions contingent upon ABA membership is unacceptable. ABA opinions often serve as the basis for other bars’ actions (though as an aside, I note that with regard to the ABA Opinion on websites, it’s rather like the tail wagging the dog, with the ABA parroting dozens of other bar decisions as it issues guidance on a technology that lawyers have been using for 15 years). Lawyers should not be charged a toll for access.
What’s most unfortunate is that as with most ABA policies, solo and small firm lawyers suffer most as a result of the ethics shroud. While lawyers at large firms or corporations can call upon in-house ethics counsel for guidance, solo and small firm lawyers serious about satisfying their ethics obligations are left with no choice but to pay for access or pay for outside counsel to offer guidance. For busy and often cash strapped solo and small firm lawyers — a group that the ABA now seeks to attract — a pay to play solution falls short.
I’ll conclude by wondering why this untenable situation has not, with few exceptions (you know who you are!) drawn an outcry from other members of the Ethics 2020 Commission and this accompanying listserve. Don’t lawyers who practice in the field of professional responsibility want to encourage lawyers to behave more ethically and read, as I do, most ethics decisions? Aren’t ethics academics aware of the unfortunate situation in which practicing attorneys find themselves when it comes to obtaining guidance? Say what you will about the FTC’s efforts to regulate attorneys, but at least all of their orders are available online and as government documents, free of copyright restrictions. Finally, even for those who don’t care a whit about ethics, then at least consider the PR consequence of this headline: Lawyers Want to Be Good, But the ABA Won’t Let Them!
To the Ethics Commission and the ABA, on behalf of solo and small firm lawyers, and the profession at large, I implore you to lead the state bars by example. Tear down the copyright curtain now and free your ethics opinions into sunlight. There’s nothing to fear–or is there?