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Future Fridays: Who Will Be Legal Ethics’ Carl Malamud?

by Carolyn Elefant on August 9, 2013 · 0 comments

in Ethics Issues, Future Fridays

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Looks like ABA Legal Rebel,  Carl Malamud, leader of the “free law movement” is at it again. This time, reports the Washington Post, Malamud has been busy posting building codes that govern at his website, PublicResource.org. Trouble is, the building codes — enacted by state and local law — incorporate industry-developed standards which are protected by copyright law. Some of the industry groups that develop these standard have now filed this  Complaint against Malamud alleging copyright violation.

The organizations argue that they invest a substantial amount of resources in developing standards and without copyright, they stand to lose a considerable stream of revenue. But Malamud contends – and I agree – that so long as these codes constitute law, the public has the right to access the information in usable form at no cost. Once liberated from the shackles of a pay wall, both the organizations that write the codes and other innovators can come up with other business models off which to profit.

At least in the case of the codes that are the subject of the dispute, the organizations make them available online. Don’t get me wrong, that doesn’t substitute for removing copyright protection which would allow more pervasive dissemination as well as development of new products for packaging or searching codes.  Would that were the case in the legal industry. As I have posted here and here, ABA Ethics opinions remain cloistered behind a paywall. Although true, the ABA Model Rules are  available on line, the Ethics Opinions form the basis of the body of law governing attorneys.  ABA and state ethics opinions are frequently cited in court cases – and the ABA itself has urged state bars to adopt  its ethics opinions. 

States are mixed on availability of ethics opinions; in the three jurisdictions where I practice, DC makes opinions available through a searchable database while New York has an incredible free app. Meanwhile, in Maryland, the only path to access ethics opinions is to join the voluntary MBSA bar association for $200.

Lack of access to ethics opinions stymies innovation. Almost monthly, I’m told by a solo or a small firm that “while I’d love to do this or that, I can’t because my bar won’t allow it.” In many instances, the opinions are based not on actual research, but on rumors and statements that can’t be verified without access to ethics opinions. At the same time, there are lots of lawyers who engage in unauthorized practice of law without knowing it because they can’t research the issue through ethics opinions (most codes on ethics are vague on the subject).

As we move towards an age of big data, imagine what we could do with unfettered access to ethics opinions and disciplinary actions. On the state level, we could systematically identify factors that lead lawyers to violate rules and put in place safeguards to prevent them. Lawyers wishing to innovate could do so in a way that’s ethically compliant instead of launching ventures that violate ethics rules or worse, refraining from doing anything new because of a chilling effect. Bars could identify other streams of revenue that come from new packaging and services that add value.

Carl Malamud isn’t a lawyer. Tearing down the paywall to ethics opinions isn’t his job. We are lawyers and we ought to step up.

Sign my Change.org petition  to remove pay walls from ABA Ethics Opinions.

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