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

from the encouraging-unethical-lawyers dept

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.

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