Can the ABA lead on innovation?

March 21, 2015

For years, Carolyn Elefant has urged the ABA to do the right thing: remove copyright restrictions from its ethics opinions and make them available online. By my count she’s written at least four blog posts and launched a change.org petition on the subject:

Unfortunately, the ABA has ignored these appeals.

So if you want to learn what’s ethical, you have to pay for it. You can pay $100/yr to join the ABA’s Center for Professional Responsibility; you can buy individual opinions for $37.95-$84.95 each (what!); or you can pay Lexis and Westlaw. The ABA does make the most recent opinions available for free online temporarily, but of course they’re copyrighted and not licensed for sharing or reuse. And apparently the ABA actually enforces the copyright.

Clearly the “do the right thing” approach isn’t working on the ABA. Maybe it’s time to try a new tactic.

Do the innovative thing.

Last week I came across a Chicago Tribune writeup of an interview with ABA President William Hubbard. The piece leads with this:

William Hubbard wants to kick an old-school industry into the future.

It also quotes Hubbard describing the “biggest challenge” he sees:

The biggest challenge is an education challenge — to convince smart people that change won’t necessarily harm our justice system. There are still people who see these kinds of efforts as a back doorway of disrupting a system that they’re very comfortable with.

Hubbard even tweeted out the link to this interview and invited the universe to share its ideas:

What’s more, a quick scan of Hubbard’s other 136 tweets demonstrates an impressive commitment to tweeting about innovation, technology and the future of legal services.

Talking about innovation, technology and the future is important, especially in the legal world where even empty rhetoric causes controversy. It’s good that these ideas are an explicit part of Hubbard’s platform. It’s great that he’s not afraid to be a catalyst and outspoken advocate for change.

Likewise, I’m sure the upcoming National Summit on Innovation in Legal Services will produce informative white papers and action plans and research studies and constructive dialogue and vigorous debate and dynamic roundtable discussions. All of that is a win and will help nudge our profession just a little closer to contemplating change.

But why not go beyond advocacy and argument and offer some proof, as we lawyers do, that all these words are true? Why not show the skeptics that innovation doesn’t have to be hard? That it doesn’t have to be threatening or disruptive. That it doesn’t have to be a big or controversial deal. And that sometimes, even, the innovative thing can also be the right thing.

Why not do something concrete that might help “convince smart people that change won’t necessarily harm our justice system,” as ABA President Hubbard apparently yearns to do?

Opening up the ABA ethics opinions would demonstrate the benefits of change and help prove that the ABA can lead on innovation.

Wouldn’t it be wonderful if ABA President Hubbard announced at the National Summit — or better yet, next week — that the ABA would make all of its ethics opinions available online for free under a CC0 license?

How much easier would it be for Hubbard and other advocates to make their case for change, and for themselves as change-agents, if they could point to some tiny little tangible step they had taken to alter the status quo?

This small step poses zero theoretical risk to clients, upsets no sacred apple carts and doesn’t even threaten attorneys’ competitive standing. Certainly making these opinions more accessible will increase the likelihood that lawyers adhere to them. And arguably, by expanding access to and knowledge of ethical standards, taking this step will enhance lawyers’ competitive standing relative to other would-be legal service providers who don’t offer the same ethical guarantees. Hell, it would even make for good marketing!

This is truly a no-brainer. If the ABA, President Hubbard and the National Summit can’t make this little change happen, what reason do we have to believe they can lead on real innovation?