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Lawyers Want to Be Good, So Why Does the ABA Make It So Darn Hard?

by Carolyn Elefant on September 29, 2010 · 18 comments

in Ethics & Malpractice Issues, Ethics 20/20, Legal Profession Trends

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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?

  • http://legalresearchandwritingpro.com/ Lisa Solomon

    Excellent post, Carolyn.

    Most state bars (and many important local bars, such as the New York City Bar Association) already make their ethics opinions freely available. The Maryland State Bar Association is a notable exception: its ethics opinions are available online only to members of the MSBA.

  • http://solopracticeuniversity.com Susan Cartier Liebel

    This is just another example of how the ABA does not address the needs of the profession. And they don't really care, either.

    As one of my professor's always opined, 'if you want to know why laws pass, follow the money.' If you want to know why the ABA does what it does, follow the money.

  • Carolyn Elefant

    I am painfully aware of the limits on Maryland opinions. Though I am licensed in Maryland, I do not belong to the MSBA as it is voluntary bar association and I pay enough in dues to three jurisdictions as it is. You are right that many state ethics opinions are available online at no charge – I have links to the sites here http://67.225.230.212/~sh1ngl3/resources/bars-reviewed/
    Unfortunately, these decisions are still subject to copyright and thus, they are not accessible (or even searchable) through Google Legal or even for fee services like BNA Ethics Reporter (the BNA Report will generate links to state ethics decisions on a given topic, but users must go outside the BNA library to the state site to access the actual opinion which is inconvenient, particularly when the page links change.

  • http://twitter.com/joshuamking Josh King

    If the ABA wants to have any relevance to the practice of law, they've got to be far more proactive and transparent.

    Opining on this topic – lawyer websites – this late in the game is bad enough. But not publicizing the opinion or making it easily available for discussion? Why bother? The discussion is just going to happen around the ABA, and largely free of its influence. This isn't a hopeful sign for any meaningful outcome to the Ethics 20/20 project.

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  • http://twitter.com/bradleybclark bradleybclark

    Very well said, Carolyn.

  • Prof. Richard Underwood

    See my post at Legal Ethics Forum. I share your views 100%. Prof Rick Underwood, University of Kentucky

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  • http://shatterbox.wordpress.com Jay Pinkert

    A chilling practice and poor precedent. What if local, state and federal agencies and elected bodies started charging for access to codes, regulations and new laws to fund operations?

  • quien

    Shame on the ABA. The excuse of protecting their copyright doesn't wash. Protect from what? Copying? ABA should be helping the profession by allowing copying, and there's no need to recoup their costs for conducting the research that underlies the opinion — that's minimal. Members should get something for their dues, and ABA charges for all their publications as well as attendance at the Annual Meeting. What else is there? Discounts at car rental agencies? Please! We're talking about guidance that improves the profession, which is what ABA is supposedly all about. Again, shame on ABA.

  • Longsuffering Gov't employee

    “What if government agencies started charging for access to codes?” They do indeed Jay. I am a government attorney who complained for years about what I refer to as “stealth law” in the building and fire code areas. The State for which I work has a practice of publishing its regulations by adopting national model codes by number reference only -with only the language that varies from the model code being reprinted. If one wanted to know exactly what the code requires, one had to fork over cash to the model code agency, and reconcile the two! i argued (to deaf ears) that at least the gist of the adopted regulation should be on file with the Secretary of State. Finally last year, the State started posting the model code on its website, in a non-copy, non-print, and non-searchable format – but at least its seeing daylight! I believe that no one should have to comply with “stealth law.”

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  • Kelly

    I absolutely agree with you! What could possibly be the reason the ABA doesn't make their ethics opinions – not only available for members, but to everyone?

    I am glad that my regulating state, California, makes it easy to access the opinions.

  • http://twitter.com/bobambrogi Bob Ambrogi

    I agree that the ABA should publish its ethics opinions for all to see and I applaud your efforts at bringing this issue to the forefront. It is disappointing to see the ABA use copyright as a veil. As the creator of these opinions, the ABA has every right to claim its copyright in them. But nothing about copyright need prevent the ABA from posting the opinions to the public at large. This is not a question of legal IP rights, but of public responsibility.

  • Eric Cooperstein

    I’ve always understood the premise of the ABA’s tight hold on Formal Opinions was to generate non-dues revenue, which is a goal of many bar associations. It would be interesting to find out, however, how much revenue the ABA actually generates from purchases of Formal Opinions.

    It may be that the ABA would attract more members by giving away the ethics opinions and drawing more lawyers to its website. I believe that’s called embracing the “economics of free,” right Carolyn? ;-)

  • David

    The ABA releases legal ethics opinions? I thought it was a direct marketing business. Boy am I confused.

  • Guest

    Carolyn,

    Long time reader, first time poster.

    The New York County Lawyers’ Association (www.nycla.org), which has over 10,000 members, freely gives access to all of its ethics opinions (https://www.nycla.org/index.cfm?section=News_AND_Publications&page=Ethics_Opinions), dating back to its first ethics opinion dated January 1, 1912 (https://www.nycla.org/siteFiles/Publications/Publications1093_0.PDF). While NYCLA always welcomes new members, the advice on ethics issues is free to all.

    I also note that NYCLA has a free blog on professionalism issues: http://taskforceonprofessionalism.blogspot.com/.

    I respectfully request that you add NYCLA to your list of bar associations at http://67.225.230.212/~sh1ngl3/resources/bars-reviewed/.

  • Anonymous

    I know I’m late to the party, but it seems the opinion is available here: http://www.abanet.org/media/youraba/201010/article10.html

    The ABA does include a copyright statement at the bottom, but at least now the opinion is available. Perhaps the attention brought to this matter through MyShingle helped them have a change of heart?

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