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The American Bar Association is under fire from attorneys who argue that the organization should stop charging fees for access to its ethics opinions. An outcry erupted this week among practitioners who said that the ABA has a responsibility to the profession and the public to make all ethics opinions available for free online. “Let the ABA sell something else,” said Carolyn Elefant, a solo practitioner in Washington, D.C. Although the ABA has maintained copyrights to its opinions since at least 1945, the issue came to the fore earlier this week when Elefant wanted to post a link to a just-issued ABA ethics opinion about online attorney marketing. The ABA had a technical problem in posting the opinion, which prompted Elefant to write an open letter to the organization on her blog, myShingle.com, complaining about a general lack of access to ABA opinions. It is an issue, she said, that “has been boiling inside me for years.” The post set off a rash of blog comments and e-mails on an ABA listserv, most of which were critical of the fees charged to access opinions that are more than a year old. New opinions are available for free on the ABA website but are taken down after several months. The ABA charges $20 per opinion for anyone who wants access to all but the most recent opinions, and gives members of the ABA Center for Professional Responsibility full access to the archives. It costs $100 annually to join the center. Annual dues to join the ABA range from $125 to $399, depending the date of admission to the bar. In response to a request for an interview, the ABA provided statements from Jeanne Gray, director of the center. “The intellectual property of the ABA is copyrighted to preserve the association’s assets and generate resources for the organization,” she said. She added that the opinions are widely available at law libraries and on Westlaw and Lexis Nexis. Attorney Bradley Clark in Austin, Texas, said that small firms and solo practitioners are particularly disadvantaged by the fee because big firms often have general counsel for ethics guidance and have better electronic research resources. The client also is disadvantaged by a lack of access, he said. “Nobody’s even really talking about them.” Clark, who was one of the commenters on Elefant’s blog post, practices at eight-attorney Gray & Becker. Those who want full access argue that the opinions are different from materials that other ABA sections publish for sale. They assert that because the legal profession is self-regulating, governed by state versions of the ABA Model Rules of Professional Conduct, the ABA has a responsibility to allow access. The opinions most often interpret the model rules. Critics of the ABA policy also assert that serving the public, which is part of the ABA mission, requires free access to the opinions. Stephen Gillers, a professor at New York University School of Law whose scholarship focuses on legal ethics, argued that the ABA should be able to charge for the opinions because of the expense in writing and publishing them. “The gimme-gimme with no payback I find troubling,” he said. Gillers was also one of the listserv commenters. The ABA’s formal ethics opinions are drafted by the Standing Committee on Ethics And Professional Responsibility. The ABA did not respond to a question about whether it would consider making more of its opinions available for free.

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