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.