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To the ABA – Tear Down the Pay Wall that Keeps Ethics Opinions From Seeing the Light Of Day (Sign My Change.org petition)

by Carolyn Elefant on October 19, 2012 · 7 comments

in Announcements, Ethics Issues

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If you thought that aggressive enforcement of copyright was only for the RIAA, think again.  The ABA is just as intent about enforcing copyright interests in its ethics opinions. But whether you agree with the RIAA’s tactics or not, at least its copyright enforcement activity is intended to protect RIAA’s constituents; artists, musicians and record companies who lose money when their music is misappropriated.  By contrast, the ABA’s policy of copyrighting ethics opinions — the source of authority that govern lawyers’ conduct and inform many state bodies regulating lawyers — and locking them behind a paywall hurts lawyers and the public.

Take for example, the recent incident (thanks, Lawyerist) involving long time blogger (and ironically, soon-to-be ABA book authorErnie the Attorney Svenson).  Ernie linked to this ABA Ethics Opinion (Formal Opinion 06-442) at his website without permission (the horror!) and received this takedown notice from the ABA.  The ABA should be particularly embarrassed about copyrighting its decisions and keeping them behind a pay wall, when it’s made available the meta data ethics opinions from at least 20 different states all of which are free (except shamefully, Maryland).

Two years back, I complained about the   ABA’s practice of copyrighting ethics opinions.  Last year, when the NYSBA launched its incredible and free ethics opinion app, I tried to  appeal to the ABA to follow New York’s example.  But nothing’s changed, except my patience which is growing increasingly short.

In the past, I’ve argued that it’s  lawyers  who lose out when ethics opinions are copyrighted and stuffed behind a paywall.  Many lawyers actually want to be ethical and take the time to read ethics decisions before taking an action. In the months since I’ve downloaded the New York ethics app, I’ve referred to it at least six or seven times and at least once, learned of a restriction that had never before occurred to me. But now I realize that the problem caused by the ABA’s policy goes way beyond lawyers and affects the public.  Members of the public may not realize that lawyers can’t just outsource work to non-firm members without supervision (Ethics Opinion 08-451) or are limited in their ability to change fees in the course of representation  ABA Formal Opinion 11-458 (still online free!). Deprived of access to ethics opinions, clients may tolerate lawyers’ unethical conduct, ultimately prejudicing their case.

But why force the ABA to liberate its ethics decisions when they don’t govern all lawyers?  Two reasons.  First, while it’s true that not all states adopt the Model Rules, many have and for those that do, the ethics opinions interpret and expound on the rules that govern lawyers in those jurisdictions. Second, the ABA’s liberation of ethics decision would serve as a symbolic act, an example for other bars to follow and for the public to applaud.

In any event, I’m tired of posting on this topic over and over again without change.  So now I’m taking action and I ask you to join. I’ve created this petition at Change.org asking the ABA to stop copyrighting ethics opinions and keeping them behind a paywall.  If ethics matter to you, sign the petition and pass it on to your friends.  It’s time for the ABA to tear down that pay wall and to allow its ethics opinions to see the light of day.

  • Johnpdickson

    I think the strongest argument against the ABA on this is that they are just like the NCAA and MLB: government sanctioned cartels. When the government tolerates you having a ton of market power, you can’t use that power to be a tyrant lest the government decide not to tolerate you anymore.

  • Dave!

    Just another reason the ABA won’t see another dime of dues monies from me. I don’t have a problem with them controlling the copyright, it’s the not making them publicly available that sticks in my craw. They could release them under a CC (Non-commercial, no-derivs, attrib) license or roll their own. But really, no excuse for charging for them other than to extort memberships.

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  • http://legalresearchandwritingpro.com/ Lisa Solomon

    Although most states have  made some changes to the Model Rules, all states have adopted some version of them. This makes tearing down the paywall even more critical.

  • Vivian Rodriguez

    Interesting…these are the same people that advocate pro bono work so heavily… http://www.probono.net/celebrateprobono/  Yet will nickle and dime us with their information…

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  • gbnoteversions

    I commend you for taking up such an issue and bringing it to light.  Some are too bogged down with the daily grind, but it is people like you that make change possible.

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