Does the ABA Do Good? (Part I)

No. (This, however, is a polemic, and as such I am unfairly neglecting some of the fine work done by some ABA sections.) As a law student, I had an inchoate thought that the ABA could be a kind of strong mediating institution between the state and the individual that would make it beneficial to the public, not just a large lobbying organization protecting the business interests of lawyers. I had a woeful lack of knowledge of the quite sketchy history of the ABA. I thought the ABA could use its organizational heft to improve the quality of applicants to the profession, improve the ethical standards required of all lawyers, and advance the public profession of the law.

One issue of importance to the ABA during my formative years as a lawyer (and even now) was its role in the vetting process for federal court nominees. Having joined the legal profession in 1982, I was quite familiar with the burgeoning culture wars, including their cousin, the judicial appointment wars. I never thought much of the ABA’s efforts to control (or at least channel) judicial selection through its Committee on the Federal Judiciary, particularly after it couldn’t determine, based on its own “non-ideological” criteria, whether Robert Bork was highly qualified, qualified, or a hopeless disaster in the making. I don’t mind the ABA’s efforts to evaluate federal judicial nominees; what bothers me is that it claims to do so as an independent, neutral, unbiased expert.

But neither its history nor its tiresome efforts to wield an oddly refractive kind of political influence is what really bothers me. No, the ABA does harm because it can’t get it right on what should be its two most important areas of concern: legal ethics (this Part) and legal education (Part II). 

Several years ago I wrote an article titled The Ethics of Copyrighting Ethics Rules, 36 U. Toledo L. Rev. 235 (2005). The article was a result of my unsuccessful effort to put the ABA’s Model Rules of Professional Conduct on my website for the use of my students in Professional Responsibility. The cost of the books reprinting the Model Rules is much more than it should be. The Model Rules are important to the extent that they are tested on the MPRE, which is required in Texas and nearly all other states. But because most of my students will practice in Texas, I can use the Texas Disciplinary Rules of Professional Conduct as my basic set of rules. I could use the Model Rules as a comparative set of rules and as the genesis for the Texas Rules, giving students a sense of how variations of rules arise and how to think about the policies supporting those variations. The idea was to put the Model Rules and Texas Rules in frames on my website so students could make side-by-side comparisons, allowing them more easily to see what was the same and what differed.

The ABA claimed a copyright on the Model Rules. I called (and wrote) it and asked for permission to reprint the Model Rules on my website. It refused. Hence the article, which traced the background of the ABA’s role in crafting rules of ethics, in copyrighting those rules, and in using them as a profit center. Copyright law was such that the ABA leadership likely never considered copyrighting the Canons of Ethics (1908), which were taken in large measure from the Alabama State Bar Association’s code from 1887 (which in turn borrowed from George Sharswood’s book on legal ethics first published in 1854). The 1970 Code of Professional Responsibility was copyrighted, but the ABA did not enforce its rights. For example, the ABA sent out 80,000 copies of the Code at no cost during the first four months of 1975 alone! Complimentary copies of the Code (and 1983 Model Rules) were available for free from the ABA from 1970 through 1985.

The ABA began its efforts to control its copyright only with the adoption of the Model Rules. I suggest the ABA did so because it saw the Rules as a hitherto untapped revenue stream. It had in the 1970s used its size and power to coerce law schools into requiring students take a professional responsibility course (the “pervasive” alternative was simply a sop to Harvard), and then encouraged the National Conference of Bar Examiners (NCBE), an organization created by the ABA, to create a multiple-choice examination on the ABA’s version of the rules of ethics as a step to licensure. The NCBE did so by 1980. When you consider that about 45,000 persons take the MPRE each year, and about the same number take a class on Professional Responsibility, selling the Model Rules can generate a tidy sum. To make students pay for what was originally understood as a service to the public is even more grating to me. My thought was to find a state that had adopted the Model Rules en toto, allowing me to bypass the ABA by reprinting the rules as the law of a state, which may not be copyrighted. Alas, the ABA keeps altering its rules enough that no state has been able (or willing) to keep up. If I were a conspiracy theorist I’d be suspicious.

The ABA’s decision to make law students pay for rules it requires those students learn to enter the practice of law may pale in comparison with the manner in which the ABA has altered its rules of ethics in the past 30 years. The Code of Professional Responsibility(adopted by the ABA in 1969 effective 1970) had a number of defects, but it was the last great hope for the profession to mold itself as a public profession. (I wrote about this in American Legal Ethics in an Age of Anxiety, 40 St. Mary’s L.J. 343 (2008).) The Code was readily adopted by states as law, often with few if any amendments. It created a three-tiered ethical system, consisting of Disciplinary Rules, a floor below which the lawyer was subject to discipline, Ethical Considerations, policies and ideas to mull over in determining what action to take, and nine Canons, general maxims regarding ethical lawyering.

The Model Rules were both a more prosaic and radical (its supporters claimed a more grown-up, modern, realistic set of rules) effort. It was prosaic in eliminating anything that smacked of idealism; the Model Rules were rules, and only rules. It was radical, for example, in its efforts to strip bare any exceptions to keeping secret client confidences, a step so startling most states rejected it.

The ABA’s fall as declarant of legal ethics was made wholly apparent in the aftermath of the Enron implosion in Fall 2001. After rejecting an effort to modify its stance on when lawyers could disclose client confidences in August 2001, Enron fell, and the ABA scrambled desperately to maintain its self-appointed role as guardian of legal ethics rules. I believe the timeline in my article, “Playing Chicken”: An Instant History of the Battle Over Exceptions to Client Confidences, 33 J. Legal Prof. 239 (2009), shows the ABA cynically cowering before Congress and later, when the dust had settled, claiming it was “speaking truth to power” by challenging the actions of Congress over regulation of lawyer ethics after Congress became bored with the issue (that is, once it did “something” by passing Sarbanes-Oxley). What the ABA refused to do before Enron it willingly did after Enron, not because it believed its earlier policy was wrong, but in order to maintain its position as expositor of legal ethics rules. Indeed, the ABA appeared willing to go beyond the demands made by Congress when its hegemony was threatened, only to walk back after the threat from Congress diminished. It showed an ABA concerned with self-preservation and the interests of its members to the exclusion of any public interest.

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