Is It Ethical For The American Bar Association To Claim Copyright On Its Ethics Opinions?

from the encouraging-unethical-lawyers dept

Mon, Oct 22nd 2012 8:23am — Mike Masnick

It sometimes amazes me how some copyright holders exert copyright when it makes absolutely no sense at all. There are plenty of times when -- even if something is covered by copyright -- it would be silly to use it. And, yet, sometimes, it still happens. Take, for example, this story sent over by Aaron DeOliveira. A lawyer, Ernie Svenson, posted a PDF file containing an American Bar Association "ethics opinion" on his blog... and the ABA threatened him with a copyright infringement claim. Remember, this is an ethics opinion from the ABA -- basically telling lawyers how they should act. You would think that they would want such things spread as far and wide as possible. I mean, that's what you would think if you were sensible. But... this is the ABA, and they just think "copyright infringement." Svenson is bewildered by the situation, noting that he would have thought the ABA would also want more lawyers aware of its ethical opinions.

Another lawyer, Carolyn Elefant, who has apparently complained about this stance by the ABA for a while, has set up an online petition asking the ABA to stop copyrighting its ethics opinions, and has also written a fantastic blog post about why it's so stupid for the ABA to do this. She notes that even if you think the RIAA's copyright tactics are ridiculous, at least it can legitimately claim that it thinks it's protecting its constituents. But, you can't make that argument here:

... 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.

She goes on to point out that while she's argued that locking up ethics opinions harms lawyers, she's now realizing that it also harms the public -- for no good reason.

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.

I really wonder what the ABA's defense for copyrighting ethics policies are, and why it would go after lawyers who share them. This really feels like a "because we can" situation, no matter how ridiculously counterproductive it is. Unfortunately, when it comes to intellectual property, there are way too many lawyers who seem to think "we can" automatically means "we should."

I wonder if someone could get the ABA to issue an "ethics opinion" on locking up crucial information on lawyer ethics from other lawyers and the public. It seems to me that it would be quite easy to make the argument that it's incredibly unethical.

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Filed Under: copyright, ethics, ethics opinions
Companies: aba

30 Comments

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That Anonymous Coward (profile), 22 Oct 2012 @ 8:30am

BWHAHAAHAHAAHAHAHAAHAHAHAAHAHAHAHA

Lawyers ethics same sentence....

BWHAHAAHAHAHAAHAHAHAAHAHAAHAHAAHAA
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Lord Binky, 22 Oct 2012 @ 8:36am

"It seems to me that it would be quite easy to make the argument that it's incredibly unethical"

They aleady covered that with an Ethics Opinion behind their secondary paywall.

Unfortunately that is an expensive paywall, costing your immortal soul... or something.
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justok (profile), 22 Oct 2012 @ 8:41am

The Alberta Basketball Association gets involved in everything.
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Anonymous Coward, 22 Oct 2012 @ 8:50am

Re:
I think you have the wrong ABA. They both play in courts, though, so I understand the confusion.
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Anonymous Coward, 22 Oct 2012 @ 9:02am

Looks like a lawyer forgot that offering lawyers an excuse to take action is a risky proposition.
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That One Guy (profile), 22 Oct 2012 @ 9:06am

What's that line again...
Something along the lines of 'When all you have is a hammer, everything looks like a nail.'

Likewise, 'When your default way to deal with problems is with a lawsuit...'
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The eejit (profile), 22 Oct 2012 @ 9:08am

I think it's the least intelligent thing they could have done. Moreover, I think it's highly unethical, from an educatory standpoint, to copyright ethics opinions. After all, they are not, strictly speaking, ideas.
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That Anonymous Coward (profile), 22 Oct 2012 @ 9:16am

Intellectual Property is our most valuable asset!!!!
If only it made them more intellectual...
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Anonymous Coward, 22 Oct 2012 @ 9:43am

Re:
Or made them real properties!
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MrWilson, 22 Oct 2012 @ 10:08am

I guess it really shows the ethics climate among lawyers when even their association shows contempt for their own ethics opinions by unethically locking them up.
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out_of_the_blue, 22 Oct 2012 @ 10:20am

WHAT is the mystery here? The ABA is a corporation...
it's NOT "lawyers", let alone the public. ABA is simply doing as all corporations do: hold and gather power.

It says exactly that above -- though you have to actually read and I'd guess most just skimmed by that point:
"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"

The ABA doesn't want a knowledgeable public because might cut down on money pocketed by lawyers. Mystery solved.
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Anonymous Coward, 22 Oct 2012 @ 10:47am

Re:
You'll know the world is ending when you meet an ethical lawyer
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Anonymous Coward, 22 Oct 2012 @ 11:24am

There are no binding rules of professional responsibility other than those issued by state and federal courts. Members of the ABA assist in crafting "model rules" that may hopefully prove beneficial to those judicial bodies in the formulation of their respective rules.

These "ethics opinions" from the ABA are no more than explanations of the issues that underlie the "model rules". I know of no attorney who seriously believes that being charged with a violation of the rules of professional responsibility can be successfully defended against by pleading "Look, this is what the ABA has to say!"
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Gregg, 22 Oct 2012 @ 11:39am

Criminal Code
Is the Criminal Code copyrighted? Wouldn't it be funny if the Government charged people to get access to the documents of the criminal code?? oh wait they already do!
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Carolyn Elefant, 22 Oct 2012 @ 11:44am

Thank you
Thank you for posting about this. No word yet from the ABA but we'll see what happens.
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Pwdrskir (profile), 22 Oct 2012 @ 11:53am

Professional Unions
�We insist that the Professional Unionization of American (PUA) will enjoy freedom from prosecution for heavy handed tactics while insisting that Monopolies rule the culture.� - Overload Scumbag

The TechDirt article posted by Joseph Weisenthal back in May of 2007 was full of foresight.

�As the share of our GDP that goes to things like healthcare and legal services continues to climb, the market will inevitably produce new technologies designed to automate the tasks of highly paid practitioners .�

�As such, groups like the AMA and the Bar will increasingly find themselves standing athwart these technologies, and other low-cost solutions in the interest of their membership, just as a union would in the face of similar conditions. Let me state at the outset that this basic idea isn't a new one. The famous economist Milton Friedman was hated by the AMA for arguing that the control it exerted over the medical industry was preventing patients from getting low-cost care.�

http://www.techdirt.com/articles/20070509/055646/professional-unions-labor-struggles-21st- century.shtml
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Anonymous Coward, 22 Oct 2012 @ 11:54am

Re:
All states adopt their own binding rules of professional conduct, and most just adopt the model rules as promulgated by the ABA. The ABA's interpretation of their own rules, while clearly not binding, is nonetheless persuasive. A lawyer who was challenged for violating a state's rule would be insane NOT to point to the opinion of the ABA on that rule if it helped. Such a lawyer would almost certainly say "Look, this is what the ABA has to say!" if doing so would help his case.
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Ed Poll, 22 Oct 2012 @ 12:03pm

ABA Ethics Opinions
The ABA likes to believe that its ethics opinions carry the weight of law. If that be the case, and if ignorance of the law is no excuse for violating the law, how can one know the law if it's not disclosed? That would be like saying that 35 miles per hour is the maximum speed limit, but not telling anyone about the limit. In fact, speed limits are written into the Vehicle Code and posted on the streets. But, then, I guess the ABA is "super" law.
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Laroquod (profile), 22 Oct 2012 @ 12:45pm

You might even say that this decision by the ABA, while legal, is unethical.
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Art Macomber, 22 Oct 2012 @ 12:57pm

ABA opinions - its own or not?
I wrote to Ms. Elefant this AM:

I read your website's missive about the ABA Ethics Opinions policy. I do not understand your concern, and I disagree with your post.

You stated, "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 [sic] would serve as a symbolic act, an example for other bars to follow and for the public to applaud."

Initially, I do not comprehend the use of the word "liberate," as if the opinion itself was captured wrongfully. Your advocacy of the use of force - by whom I must ask - is incredible. Whose other property would you like redistributed while you are at it? I am discouraged by your language, as if you are fighting "the good fight" for the weak, poor, disabled, or diseased.

Certainly a non-profit has the right to its intellectual property as do other creators (http://www.americanbar.org/utility/terms.html, 9, 10, 11 & 17), and the State of Illinois does not require non-profits such as the ABA to provide free opinions.

The ABA Disclaimer is: "The information contained in the Sites and ABA Content may or may not reflect the most current legal developments; accordingly, information on the Sites are not promised or guaranteed to be correct or complete, and should not be relied upon as such. As legal advice must be tailored to the specific circumstances of each case, nothing provided on the Sites or the ABA Content should be used as a substitute for advice of competent counsel. The materials on the Sites and ABA Content do not constitute legal advice and do not necessarily reflect the opinions of the ABA."

Conversely, a member of the ABA has the unfettered right to access those opinions for the grand total of approximately one hour or less of a lawyer's standard hourly rate for an ANNUAL membership! This does not sound like a hardship to any attorney. So, if a State has adopted the Model Rules, an inquiring lawyer can simply join the ABA and look at the opinion - which, I should point out, is NOT authoritative in ANY State adopting the Model Code, thus for authority an attorney MUST go to their own applicable State Bar for ethics questions answers and solutions. See Disclaimer above.

As far as serving as a symbolic act, what it appears you are requesting is for the ABA to provide a free good. Why? What would you like to see as a symbol of its use of intellectual property: that it should be free to any requester even if not a member? Do you or does any other legal opinion writer provide free opinions as a matter of policy to non-members? I certainly do not. And, expecting the ABA's good works to be freely distributed pro bono, as if it has some ethical obligation to do so is misguided at best. Ethics obligations are for individuals, not for the non-profits that serve them. The ABA is a non-profit organization that one can join voluntarily, and its products and services are available to members - and some to non-members where the ABA so chooses. It is not a public entity from which a person can demand services to which they believe they have a "right" to obtain at the expense of others. I simply do not understand your thinking here.

Here is the corporate report from the Illinois Secretary of State:

CORPORATION FILE DETAIL REPORT

--------------------------------------------------------------------------------
Entity Name AMERICAN BAR ASSOCIATION File Number 57090103 Status ACTIVE Entity Type CORPORATION Type of Corp NOT-FOR-PROFIT
Incorporation Date (Domestic) 12/07/1992 State ILLINOIS
Agent Name R THOMAS HOWELL JR Agent Change Date 04/25/2008 Agent Street Address 321 N CLARK ST President Name & Address Agent City CHICAGO Secretary Name & Address Agent Zip 60610 Duration Date PERPETUAL Annual Report Filing Date 00/00/0000 For Year 2012

I don't know of any rule that mandates this organization provide free goods, and I do not believe any government entity has the power to use "force" to "liberate" intellectual property from the ABA.

Art Macomber
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Anonymous Coward, 22 Oct 2012 @ 2:12pm

Re: ABA opinions - its own or not?
Curious (actually, it is not) that Ms. Elefant bemoans documents created within the private confines of the ABA as being behind a "copyright paywall", while at the same time not bemoaning documents created within the private confines of her office/residence) as being behind a "copyright paywall" (which is especially disingenuous on her part since one of her documents, a book, is being sold on the ABA website).

There are many publications I would appreciate accessing that require membership in specific organizations. Perhaps some should start petitions demanding they be freely distributed.
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That Anonymous Coward (profile), 22 Oct 2012 @ 3:00pm

Re: Re:
I've encountered a few who have souls.
Much of my work fighting copyright trolls brings me into contact with all sorts of people and a few good lawyers who don't bend Does over to help defend against the extortion.

They are few and far between, but they do exist.
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Mike Masnick (profile), 22 Oct 2012 @ 3:31pm

Re: ABA opinions - its own or not?
Initially, I do not comprehend the use of the word "liberate," as if the opinion itself was captured wrongfully. Your advocacy of the use of force - by whom I must ask - is incredible. Whose other property would you like redistributed while you are at it? I am discouraged by your language, as if you are fighting "the good fight" for the weak, poor, disabled, or diseased.

If you don't understand what she actually wrote -- which was clear, concise and well explained, perhaps don't double down by posting your ignorance publicly.

She gave a very clear explanation for why it was silly of the ABA to lock up this info. She was not condoning "the use of force" to free the content, but rather explaining to the ABA why it was in their own best interests to free it.

Amazed at how some people appear to willfully misrepresent something like this.
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Mike Masnick (profile), 22 Oct 2012 @ 3:33pm

Re: Re: ABA opinions - its own or not?
Curious (actually, it is not) that Ms. Elefant bemoans documents created within the private confines of the ABA as being behind a "copyright paywall", while at the same time not bemoaning documents created within the private confines of her office/residence) as being behind a "copyright paywall" (which is especially disingenuous on her part since one of her documents, a book, is being sold on the ABA website).

It's not curious at all. She is not arguing that no documents deserve copyright protection. Just that it makes little sense for *THESE* documents to have copyright protection. That point was made clearly. Not sure why you ignored it, other than to set up a bizarre strawman.
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Anonymous Coward, 22 Oct 2012 @ 3:59pm

Re: Re: Re: ABA opinions - its own or not?
Again, all the ABA committee does is craft model rules for consideration by courts and certain administrative agencies. It is what the courts and agencies say these rules "mean" (assuming they have adopted any of them) that count, and not questions discussed within the committee with an eye to more fully elaborating on various issues that the model rules may involve.

The author's time, in my view, would be much more productively spent addressing the issues associated with PACER...publicly filed documents that are behind a government paywall.
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Anonymous Coward, 22 Oct 2012 @ 4:38pm

Re: WHAT is the mystery here? The ABA is a corporation...
Yes, but it misses the grander question: Is it ethical for them to do this? We don't think it is, because it allows lawyers to do what they want until someone in the know catches them, which just harms the public. Is that ethical? No. Is it fair? No. Should it be illegal? Probably.
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Anonymous Coward, 22 Oct 2012 @ 5:52pm

Re: Re:
What about an 'ethics lawyer'
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G Thompson (profile), 22 Oct 2012 @ 10:49pm

Re:
Just stares at you!

*contemplating upon a suitable punishment*
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G Thompson (profile), 22 Oct 2012 @ 10:54pm

Re:
well maybe it's not that they don't want to.. maybe it's because they Kant!

*waits for it... ;)*
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G Thompson (profile), 22 Oct 2012 @ 11:15pm

Re: ABA opinions - its own or not?
When you understand that attorneys in the USA are beholden to professional rules of responsibility (By your link on your profile I am assuming you already are a practising attorney and know of this) and these rules are more likely than not to be modelled/based on what the ABA (not unlike the APA does with psychology) opines in its own interpretations and rules for ethical behaviour, and that these rules are what these attorneys are to apply to all services and clients (and courts) no matter what, then the public by being those clients has to have the ability to be given unfettered access to these interpretations.

This is even more so if attorneys who are brought before the Bar for allegations of ethical misconduct (initiated by complaints by clients) then use these same interpretations and rulings by the ABA to defend their actions or lack thereof.

This transparency is a basic doctrine of procedural fairness and is required to ensure the public understands and is shown that rules are being upheld (and what those rules are) with no fear nor favour for the service that the clients are receiving.

That is ethical, anything else is just doing a disservice to the profession and institution of Law and to the Public at large.

If you don't understand that, well that will ultimately be your problem.
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