Ethics alert: be careful about posting ABA formal ethics opinions on the web

Last week I got an email from someone in the legal department of the American Bar Association. They wanted me to remove a PDF file with a formal ABA ethics opinion on metadata, because I hadn’t sought, and received, permission to post it. Of course, I had no idea that ABA opinions were subject to strict publication controls.

I would have thought the ABA would want to make it as easy as possible for people to know about their formal ethics opinions.

I told two lawyer friends about the ABA’s email. One is an ethics expert, and said “the ABA has long taken this position, and it’s annoying.” The other is an intellectual property expert; she was surprised the ABA would claim a copyright in formal opinions. She offered to help me craft a response letter to ask the ABA to explain their position, but I told her I’d rather just take down the file and move on.

What do I care if less people have access to ABA formal opinions? It’s not my central goal to make lawyers more aware of ethical issues. I would have thought that’d be the ABA’s goal. Clearly, I don’t understand a lot about the ABA. But I wonder how other lawyers would feel about the ABA’s position.

I’m pretty sure many of them would think it’s strange.

Update: Carolyn Elefant has been complaining about the ABA’s position for years, and has some really thoughtful observations on her blog. She’s even created an online petition at Change.org for folks to use to register their disagreement.

  • http://www.likelihoodofconfusion.com Ron Coleman

    I'd like to see that IP lawyer's opinion, Ernie. Would she consider publishing it (I could publish it on my blog as guest post even).

  • Ted Waggoner

    Since there is no "there" for an ABA opinion, I wonder about the value of the opinions, other than as the thoughts of a group of smart lawyers? The opinions from state ethics committees are focused on the rule as adopted in that state.

    Is it wrongheaded to limit the workproduct of the committee? Of course. Does it sound like the decision of the white leather leaders of the 50s and 60s, rather than of leaders like Lauren Bellows today? I think so. I hope so.

  • http://www.myshingle.com Carolyn Elefant

    Ernie, this irks me to no end and I've blogged about it many times http://myshingle.com/2010/09/articles/ethics-malpractice-issues/lawyers-want-to-be-good-so-why-does-the-aba-make-it-so-darn-hard/ Surprisingly, the lawyers who were most opposed to publication of ethics decisions were the ethics lawyers on the Ethics 2020 list who called me a freeloader for endorsing free availability of ethics opinions. I'll have more to say on this