The American Bar Association Should Be a Champion of Open Access to Law

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Here is the unfortunate way the American Bar Association responded when Wolters Kluwer asked to reprint some of the Model Rules of Professional Conduct in a professional responsibility course book, Ethical Problems In The Practice Of Law:

It is the policy of the ABA and its Center for Professional Responsibility not to permit the reproduction of more than 25% of publications it is selling itself. Moreover, it is the policy of the ABA … not to permit reproduction of the Model Rules without the applicable Comments.

In other words, if you want to publish the ethics rules that everyone who takes the Bar Exam is responsible for knowing, you must pay a substantial fee to the ABA. Keep in mind that the reason everyone who takes the Bar Exam is responsible for knowing the model rules is that the ABA includes that requirement its law school accreditation standards.

Now the American Bar Association may or may not be in the right as a matter of law (spoiler: probably not), but it is very much wrong as an example for the profession.

In its report on the future of legal services, the ABA Commission on the Future of Legal Services found, among other things, that attempts to introduce technology as a way to solve legal problems are often met with heavy resistance. And hefty price tags from the ABA, it turns out.

But there is another obstacle to using technology to increase access to justice: the lack of open access to law. It was a thread running through CodeX, and I’ve talked about it in-depth with Sarah Glassmeyer and Ed Walters. You can’t built great software on top of nothing. Often, you need to incorporate the law, either as law or in the algorithms that power the software. And if you have to pay for the law, you have to charge for the software, which often means you are going to build software for big firms, not for the public.

Is the ABA’s insistence on licensing the Model Rules the reason we can’t close the access-to-justice gap? No. But it sets up the ABA as an obstacle to access, not a champion of access.

I could not find anything to indicate that the ABA has taken a stand on open access to law one way or another. I asked Sarah Glassmeyer, who also happens to be our newest contributor, and she didn’t think the ABA has weighed in, either.

Well, it’s time. The ABA should be a champion of open access to law, the foundation on which the future of access to justice will be built. And it should start by opening up the law it controls.

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  • Walker

    All one needs to know about the ABA is that they barred people of color until 1943 and their enduringly pathetic efforts around “diversity” all begin and end with the assumption that the path to becoming a lawyer must involve a professional school (accredited by the ABA so that it functions just like Harvard did in the 1880s) and hundreds of thousands of dollars of debt and lost income.

    • Walter Sobchek

      Walker are you high? Have you been involved in the ABA in the past decade? It’s primary focus is diversity. The current president is a woman of color, the next president is a woman. 2012-2013 president was a woman and the president in 2009-2010 was a woman.

      Have you ever put together a CLE with the ABA? Diversity of speakers is a requirement, you must identify a person of color or woman as a speaker for the vast majority of CLE’s. It’s far more than lip service. Look at the latest issue of the ABA Journal

      While you can complain that lawyers shouldn’t have to go to law school and the ABA accreditation program is the reason you need to go to law school in order to eventually practice law, you really can’t complain the ABA has “endearingly pathetic efforts” toward diversity.

      P.S. While you’re at it maybe you should complain that the AMA is being too aggressive by requiring people to attend medical school before practicing medicine?

      • Walker

        The ABA is all about superficial diversity efforts that are window dressing that enable them to posture as enlightened, while never noticing that defining a high-cost graduate-school only path to becoming a lawyer is the epitome of filtering to prevent diversity.

        Want diversity? Create an ABA standard apprenticeship model that will allow any lawyer lawyer with a modest practice to mentor an apprentice while paying them a living wage to work in the practice, with the ability to enter the profession upon successful completion of the apprenticeship.

        Until then, all the noise about diversity is just camo that poorly conceals that we took a system DESIGNED to be exclusive and make sure only the right white males could enter and have basically done nothing to actually provide alternative paths to entry that would allow the poor to become lawyers.

  • Walker

    This is promoting diversity:
    https://www.fastcompany.com/3062835/hr/microsoft-autism-hiring

    What the ABA and bar associations do is promote the exact opposite, a superficial take on diversity that says “Hey, c’mon, you can be a lawyer, just be exactly like everyone else that can get through this grueling series of obstacles that are completely arbitrary and were designed to prevent “the wrong sorts of people” from entering the law and that fundamentally are operating in exactly that way today.”