Wednesday, September 29, 2010

Debate Continues Over Access to ABA Ethics Opinions

Following yesterday's discussion about the accessibility of ABA ethics opinions, what John Steele at the Legal Ethics Forum dubbed a "collateral fight" continues.

Several arguments supporting the notion that opinions that shape professional standards should be open and accessible:
  • "The ABA can’t be a leader in providing that guidance if its thinking on these issues is not freely available."
  • "True, the ABA opinions are not binding, but they're considered persuasive and many states rely on them. Moreover, whether or not I pay ABA dues is irrelevant because the ABA opinions affect all lawyers whether they are members or not."
  • "No one objects to copyrighting the various books and magazines that are published under ABA auspices. Those are all commentary in a way that ethics opinions are not. The entire rule-making, rule-interpretation exercise is based on the reality that the ABA is (and wants to be) a crucial element in lawyer self-regulation...I'm not very comfortable having the ABA assert a property interest in essential guidance to the law of professional responsibility."
Others counter that the financial wherewithal to produce these opinions, guidelines and resources needs to come from somewhere, and worry about a "free rider" problem:
  • "I get the idea that monetizing the Model Rules and opinions interpreting them seems almost offensive in light of their status as public law (or the source of same). But, that kind of turns the question on its head. The jurisdictions... have to some extent had a free ride whenever they adopt rules based on ABA models. Those models did not spring up without cost or effort."
  • "A very large number of lawyers do not belong to any voluntary bar association but they surely benefit from the contributions of those who do, especially from the work of those who contribute their time and professional expertise in the area of the law of lawyering and legal ethics. Please encourage colleagues who do not belong to the ABA or to their state or local bar associations to join."
  • "The argument presented by the 'free access' advocates seems to be primarily based on the notion that the ABA's ethics opinions are so persuasive that they constitute quasi-law... Not all quasi-law is freely available. As has been pointed out, the Restatements aren't generally available without cost, although they are widely quoted and relied upon by courts... The 'state code' argument is flawed. Most, if not all, states do make their laws available online and for free, sometimes in a user-friendly format and sometimes not. On the other hand, if you want that handy-dandy version that has the case annotations, legislative history, etc, you usually have to pay a pretty penny to Michie or somebody for that... All that having been said, the ABA's approach to copyright in this area is not free from justified criticism."
The most amusing exchange to date:
  • Contributor A: "The Tea Party comes to the legal profession: I am really angry because the ABA is such a big impersonal and expensive organization that wastes its time, money, and energy on things I don't care about or disagree with. But when it comes to ME, it should provide the services I want for free because I am special, deserving, and cheap."
  • Contributor B in response: "Wait...Has Stephen Colbert hijacked out listserv?!?"

No comments:

Post a Comment