Tuesday, September 28, 2010

More Discussions about Accessibility of Ethics Opinions

Several months ago, the ABA Ethics 20/20 mailing list touched on the issue of challenges to accessing various state bar ethics opinions. Today, this issue arose again regarding accessibility of the ABA's own published opinions.

The debate began when the ABA circulated a new opinion (10-457) on lawyers use of web sites via PDF to the list. A member noted that they were surprised by the opinion and hadn't seen it mentioned in any other forum, including the ABA's own web site.
  • In response, one list member re-posted the opinion on his own web site. But the ABA informed this individual that the content was copyrighted and the repost was not authorized and asked that it be removed, noting that it would instead be posted on the ABA's web site tomorrow.
  • The discussion then took a heated turn, culminating in a lengthy and critical post on the MyShingle.com blog by Carolyn Elefant: "Lawyers Want to Be Good, So Why Does the ABA Make It So Darn Hard?" -- The author charged: "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."
Response to this article and argument was mixed both pro and con:
  • One contributor noted that as a non-profit organization the ABA relies on sources of financial income such as access subscriptions/paywalls to cover the costs of creating and distributing these opinions in the first place. And that other organizations follow what could be labeled even more restrictive practices: "If the ABA should publicly post, should the ALI publicly post its Restatements? Should BNA publicly post the Lawyer's Manual?"
  • Another commenter supported the free and open access position: "Of all the things to shroud in secrecy, these opinions are the last things that should be...I hope the Powers That Be listen."
  • Another voice added: "Like it or not, by voluntarily undertaking to issue ethics opinions, the ABA has placed itself in a "law-giving" role (yes, we all know that ABA opinions are not binding in any jurisdiction); as such, I believe that it has a duty to make all of its ethics opinions freely available."

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