The ABA has published a new Ethics Opinion (No. 10-457) on ethics issues related to lawyers use of websites. I have not had a chance to see the opinion so I will save my comments on it for a future date. However, the announcement generated a very spirited debate on a different issue.
After the opinion was circulated by email to all subscribers of the Ethics 20/20 Commission listserv with a warning from ABA staff counsel not to post it publicly due to copyright restrictions, a debate erupted on whether the ABA should make its Ethics Opinions available for free to all lawyers.
It all started when blogger Carolyn Elefant, frustrated because she could not post the opinion for the benefit of her readers, instead published an open letter to the ABA complaining about a general lack of access to ABA opinions. You can read her comments here. The response was fast and furious both in her website, in a barage of e-mail messages in the 20/20 commission listserve and elsewhere. For example, see here and here.
Elefant argues that "making access to ethics opinions contingent upon ABA membership is unacceptable. ABA opinions often serve as the basis for other bars’ actions (though as an aside, I note that with regard to the ABA Opinion on websites, it’s rather like the tail wagging the dog, with the ABA parroting dozens of other bar decisions as it issues guidance on a technology that lawyers have been using for 15 years). Lawyers should not be charged a toll for access."
On the other hand, members of the ABA Commission have argued that asserting copyright protections allows the ABA to raise funds. They also argue that there is nothing wrong with saying that attorneys should join the ABA to get ABA publications.
UPDATE 10-6-10: In response to the criticism regarding access to ethics opinions, the ABA has published this announcement.
Interestingly, the announcement actually admits to the accuracy of the main criticism: the ABA does not allow others to post the opinions on their own sites claiming copyright protection. Instead, the ABA encourages others to link to the ABA’s website to access the opinions, but since the opinions are only available free of charge for six months, the links are of little use to those who are not members of the ABA after that period of time. Those who defend the ABA's position argue that enforcing copyright protections allows the ABA to generate some income to cover the costs of providing its services to the profession and that lawyers who want to enjoy the benefits of those services should contribute to pay for them.
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